UC-NRLF 
 
 $B n bbs 
 
GIFT 
 FEB 23 1916 
 
■>A(v 
 
 GIFT OF 
 
 ^1 
 
 ^^^ 
 
Digitized by the Internet Archive 
 
 in 2007 with funding from 
 
 IVIicrosoft Corporation 
 
 http://www.archive.org/details/ancienthebrewlawOOsulzrich 
 
THE 
 
 ANCIENT HEBREW LAW 
 OF HOMICIDE 
 
 BY 
 
 MAYER SULZBERGER 
 
 PHILADELPHIA 
 JULIUS H. GREENSTONE 
 

 ^% 
 
 PRINTED IN ENGLAND 
 AT THE OXFORD UNIVERSITY PRESS 
 
 \ •/• >• '; : ^^t' \ •' 
 
 » \ : '• : • 
 
The following lectures were read before the 
 Dropsie College for Hebrew and Cognate 
 Learning in the months of March and April, 
 191 3. They belong to a series of studies in 
 Jewish Jurisprudence and Institutes of Govern- 
 ment, two of which have been heretofore pub- 
 lished, to wit, * The Am Haaretz — the Ancient 
 Hebrew Parliament', 1910, and 'The Polity of 
 the Ancient Hebrews', 191 2. My thanks are 
 due to Dr. Julius H. Greenstone, who has 
 prepared the careful indices to the volume. 
 
 M. S. 
 
 328559 
 
THE ANCIENT HEBREW LAW OF HOMICIDE^ 
 
 I 
 
 The law of homicide is an index to certain sides of 
 national character. Where there is a small, powerful class 
 able to monopolize rule and government, the rights of the 
 great mass of common people are weak and ill-assured. 
 In such a society there is much violence. Arrogant and 
 turbulent spirits are in perpetual rivalry, and compete for 
 mastery. The stronger steadily eliminate the weaker. Life 
 is held cheap. The chiefs, who are always risking their 
 own lives, compel their underlings, who have no great stake 
 in the contest, to risk theirs. It is a kind of feudal system, 
 in which each chief is the head of a clan or other organiza- 
 tion with whose aid he hopes to retain or to achieve 
 pre-eminence. 
 
 Out of such a condition the early laws of homicide arise. 
 
 Clans in juxtaposition are never quite at peace with 
 €ach other. There may be a kind of truce, but this is liable 
 to be broken at any moment. The murder of a clansman 
 by a member of another clan is castts belli, for the sufficient 
 reason that it weakens the assailed clan. If unpunished, 
 the act tends to be repeated, and this process would, in 
 a relatively short time, bring the weakened clan under 
 subjection to the aggressor clan. 
 
 * A course of five lectures delivered before the Dropsie College for 
 Hebrew and Cognate Learning, March 31, April 3, 7, 10, and 14, 1913. 
 
 I B 
 
2 THE* 'ANCIENT HEBREW LAW OF HOMICIDE 
 
 In such a state of society the law of retaliation (the lex 
 talionis) becomes inevitable. The assailing clan must be 
 weakened as much as the assailed, if the latter is to retain 
 its relative strength and position. What we call lex talionis 
 is therefore, primarily, a means for the defence of the clan^ 
 an inter-clan rule. It is one of the early stages of what we 
 now call international law, which even yet knows no final 
 arbitrament but the sword. 
 
 The period when this rule began to be applied antedates 
 even primitive history. We know of no stage in which 
 men did not form a kind of society, however small or rude 
 it may have been. And so soon as this point has been 
 reached, individual action ceases to be unrestrained, and 
 must accept limitations useful for society. A member of 
 the blood-covenant may no longer slay his fellow-member. 
 However determined his purpose, the hatan damim (member 
 of the blood-covenant guild) must forgo it when he learns 
 that the intended victim is also a member (Exod. 4. 24-6).^ 
 
 1 The text, Exod. 4. 23-6, is of great antiquity. It refers to an early state 
 of the law in which for certain offences the penalty of death is imposed 
 on the eldest son of the criminal. If Pharaoh will not let the people go, 
 if he will enslave JHVH's first-born {hekor\ then JHVH will slay his 
 first-born {hekor). This is the primitive lex talionis, traces of which are 
 clear in the Hammurabi Code, §§ 116, aio, and 230. 
 
 This denunciation of punishment against Pharaoh by killing his first- 
 bom son brings to the writer's mind an incident in the life of Moses which 
 he then proceeds to relate. Moses has been guilty of some delinquency 
 which was doubtless plainly told in the old narrative but is here omitted. 
 The Rabbis inferred that when Moses married the daughter of Jethro, the 
 latter as a condition of his assent stipulated that the first-born son of the 
 union should be brought up as a Gentile. Hence the boy Gershom was 
 not circumcised (Ginzberg, Legends of the Jews, vol. II, p. 328). As JHVH 
 claimed the first-born of all Israel as his, the failure of Moses to circumcise 
 Gershom was to be punished by the death of the latter. The quick mother- 
 wit of Zipporah saved the situation. She circumcised the boy, cast the 
 foreskin at JHVH's feet uttering (for the boy) the proper formula: * Now 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 3 
 
 From the very beginning of organized society, there 
 must have developed two sets of laws, one for those within / 
 and the other for those without the clan. The latter is ^ 
 simple and short. A member of clan A has weakened 
 clan B by killing one of its members. Clan B must 
 retaliate by weakening the aggressor clan at least as much. 
 
 This policy, however wise as against another clan, would 
 be ruinous if applied within the clan. One member has 
 killed another, and has thereby reduced the strength of the 
 clan. If the aggressor be killed, its strength is further 
 reduced. The direct clan-interest is that the aggressor 
 be kept alive, unless he is likely to further imperil the 
 community. It is this contingency which creates a necessity 
 for devising a lesser punishment than death for homicide 
 within the clan, and hence is evolved the system of imposing 
 a money penalty on the homicide — wergild. It is this 
 contingency, too, which creates a necessity for ascertaining 
 the circumstances of the tragedy and its underlying motive. 
 Hence follows a subdivision of homicide into murder, which 
 even within the clan may continue to be a capital offence, 
 and manslaughter, which may readily be compounded for. 
 
 Two systems of homicide law are thus made more or 
 less co-existent: an external homicide law, which is the 
 lex talionis^ a kind of war, and an internal homicide law, 
 which seeks to ascertain the very right of each case — what 
 we would call justice. 
 
 This CO- existence of two discordant systems of law in 
 each of the many clans composing a state or kingdom, tends 
 
 art thou of blood-covenant {hatan dantim) with me ! * JHVH forbore his 
 purpose. And then follows the explanation that circumcision constitutes 
 blood-covenant, with the necessary implication that blood-covenantees may 
 not for any cause kill each other. 
 
 B 2 
 
4 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 Steadily to undermine the lex talionis. With the progress 
 of the state, the relations of its several parts become 
 closer and closer, and the comity between them increases. 
 The justice of the internal law becomes more and more 
 apparent, and with the growth of peaceful relations between 
 the several clans, the idea of the unity of the state is 
 strengthened. The feeling which individuals had for their 
 clan is gradually transferred to the state or kingdom, and 
 it is seen that all the clans together constitute one great 
 clan, which is called the state. When this point is reached 
 the lex talionis dies a natural death. 
 
 This progress, though curtly described, is very slow, 
 and is reached, not by a leap, but by slow stages. For 
 long ages the lex talionis continues to be recited as regulating 
 the relations of men within the clan, and yet it is all the 
 while undergoing decomposition. The Code of Hammurabi, 
 if taken literally, would present a shuddering spectacle. 
 Its notions of retaliation betoken fierce barbarism. It is 
 reasonably certain, however, that in very early times its 
 crude literalness was modified, and that the law as ad- 
 ministered in later ages was far different from the bald 
 meaning of its words. The marked intermediate stage, 
 which is most important in the consideration of our subject, 
 may be called the wergild stage, or, to use the Hebrew 
 term, the kofer stage. 
 
 When a kingdom has travelled a certain distance on 
 the road to unity, it perceives that a state of war between 
 its parts, however mild or modified, is injurious to its 
 progress. The same necessity which compelled the clan 
 to work out an internal homicide law milder than the 
 external homicide law, presses upon the state. For its 
 purposes the several clans cannot be hostile to each other, 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 5 
 
 but must constitute one great national family. The dis- 
 tinction between external homicide law and internal 
 homicide law cannot exist for it. Human nature, however, 
 is more powerful than governmental logic ; ancient notions 
 and customs are not to be done away with in a day, nor 
 can hereditary feuds be converted into brotherly feeling 
 by mere fiat. Force is necessary, and the growing state 
 exerts it to prevent bloody inter-clan feuds. The first mode 
 of prevention is always the insistence on zvergild between 
 the two clans, that is, the injured clan, instead of going 
 to war, must accept a money composition for the loss of 
 its member. The central state must, however, have acquired 
 great stability and power before it can effect this end. 
 
 When this stage is reached, the kingdom has surmounted 
 a danger leading to disintegration. By way of compensation^ 
 perhaps, this improvement leads to another danger. Wealth 
 has acquired a new force. It now enables its owner to kill 
 the member of another clan with much less danger to his 
 own life than before. With the growth of a state's wealth 
 this peril grows more and more formidable. Hired assassins 
 will form a class, and individual safety will be greatly 
 impaired. The weakness of the kofer system will become 
 more and more apparent, and the moral power of the 
 internal homicide law will make its way. 
 
 When the proper point is reached, the state overthrows 
 the kofer law and substitutes for it the inquiry into the 
 circumstances and motive of every homicide, which results 
 in the doctrine that homicide is so great an offence against 
 the state that the private wrong is submerged, and that 
 it is incapable of private composition, no matter what the 
 reparation offered. Then only is the state fully organized 
 to carry on a civil government. 
 
6 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 We have no adequate means to ascertain when the 
 pre-Hebraic inhabitants of Palestine passed through these 
 stages. The probability is that long before they were 
 conquered by the Hebrews they had reached the wergild 
 stage. 
 
 The Code of Hammurabi of Babylonia {circa 2250 B. C.) 
 has as yet no general state-law punishing homicide. This 
 crime must therefore have been under the jurisdiction of 
 recognized constituent elements of the state, such as clans 
 or the like, which severally protected their clansmen's lives 
 against assault from without and within. There are indi- 
 cations that the kofer stage had been reached. 
 
 The Hebrew tradition is that the state was formed at 
 the crossing of the Jordan ; and by the formation of the 
 state we mean that every male Israelite became a member 
 of a great national blood-covenant which, theoretically at 
 least, overrode all ties of family, clan, or tribe. At Gilgal, 
 before the campaign for the conquest of Canaan began, 
 this great covenant between all Israel and JHVH was 
 entered into (Josh. 5. 2-9). Pesah was celebrated (5. 10-12), 
 and JHVH, by special messenger {sar-seba-J H V H)^ ratified 
 the covenant, and in symbolical language welcomed the 
 new-comers to the land of JHVH, which had become holy 
 in fact by the entrance of the covenant people. 
 
 In the course of lectures delivered before this College 
 last year, my endeavour was to show that the pre-Hebraic 
 inhabitants of Palestine were politically organized into 
 small city-kingdoms ; that the Hebrews, when they con- 
 quered the land, accepted the system, but did away with 
 the kings, converting the petty kingdoms into cantons or 
 districts, which continued to be called cities (arim)^ and 
 that these became the constituent elements of the Hebrew 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 7 
 
 State, abolishing, in theory at least, the former dividing 
 lines of family, clan, and tribe. 
 
 The process of forming this new Hebrew state lasted 
 for more than two centuries. The settlers advanced further 
 and further, coming into closer and closer contact with the 
 natives. Ancient Canaanite modes of thought impregnated 
 the settlers' minds, and both in religion and in law Canaanite 
 views struggled with Hebraic principles. How bitter the 
 contest was the whole Hebrew literature shows. Though 
 in the view of practical statesmen Hebraism in the end 
 triumphed, both in church and state, yet the idealists were 
 so dissatisfied with the Canaanitic alloy, which always more 
 or less manifested itself, that a reader of the prophetic 
 discourses might almost be misled into believing that Baal 
 had borne off the victory from JHVH, and that the ancient 
 codes had crowded out the Torah. 
 
 Our present task is to show the contest between the 
 Hebrew law on the one side, and the Canaanite practice 
 on the other ; to point out that the zikne ha-ir, infected 
 as they were with the old Canaanite notions and practices, 
 had to be restrained and corrected, at first by federal 
 delegates, and when this measure proved inadequate, had 
 to be deprived of large and important items of legal juris- 
 diction, which were transferred to federal courts, and then 
 to make clear that for the unity of the state it finally 
 became necessary to deprive the zihie ha-ir of all important 
 judicial functions, and to establish a complete system of 
 federal courts, sitting in every Hr^ and thus bringing the 
 Hebrew law home to every corner of the kingdom. 
 
 In the investigation of this movement we have chosen 
 to begin with the law of homicide, not only because of its 
 fundamental importance, but also because the Torah gives 
 
8 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 fuller and more detailed information on this branch of 
 jurisprudence than on any other subject of the criminal 
 law. This valuable feature of the Tor ah must not, however, 
 blind us to the fact that its statement of the law on any- 
 subject is not exhaustive. The Hebrews had for ages lived 
 a settled pastoral life in a portion of the Egyptian kingdom 
 expressly assigned to them. While subject to the laws 
 of the Empire, they had a numerous community of their 
 own, among whom grew customs and observances which 
 were, in effect, a kind of internal law. The tradition was 
 that they were governed by elders. At the very beginning 
 of the public career of Moses and Aaron, they submitted 
 their plans to this body (Exod. 4. 29-30; 12. 21 ; 17.6; 19. 7). 
 
 The oral or customary law which thus naturally grew 
 among the Hebrews in Egypt is nowhere recorded. It was 
 a Torah she-be al peh, which, with them, as with all other 
 nations, preceded any written code. Nor did the written 
 code, Torah she-bi-ktab, when it came, stop the further 
 development alongside of it, of the old Torah she-be'^al peh. 
 New and unforeseen circumstances would arise which had 
 to be met by the tribunals, and their decisions, from the 
 time when the Oracle took jurisdiction of certain cases 
 down to the latest period when judges of ordinary law- 
 courts presided, constituted an ancillary body of oral or 
 common law. 
 
 We are not without specific evidence on this subject. 
 An examination of the texts of the Pentateuch relating 
 to homicide discloses the fact that their contents are of 
 two diverse kinds, one of them being in the dogmatic form 
 of mishpatim (statutes), and the other of them torot^ or 
 summaries of the facts and the law of cases, in the manner 
 of the syllabi of our law reports. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 9 
 
 Nor is this a peculiarity of the law of homicide. There 
 are in the Torah at least four other instances of reported 
 cases: the case of the blasphemer of the Shem (Lev. 24. 
 10-16), that of the Sabbath-breaker (Num. 15. 32-6), that of 
 Zelophehad's daughters (Num. 27. i-ii), and the second 
 case of Zelophehad's daughters (Num. 36. i-io). In each 
 of these the facts are narrated and the principle of the 
 decision announced for guidance in the future. They 
 constitute what we call case-law, as distinguished from 
 statute law, and what the Hebrews call Tahmid, in contra- 
 distinction to mishpatim or Torah. The memory and results 
 of this steady accumulation of case-law during a period of 
 perhaps fifteen hundred years are preserved to a small 
 degree in the Bible, and to a much greater degree in the 
 Talmud. It is to be hoped that studies in the vast field 
 of Talmudic literature may give us light on many subjects 
 of which we are, at present, wofuUy ignorant. We are not 
 able to show the contents of the ancient pre-Mosaic oral 
 law, and cannot therefore pretend to give its provisions 
 in relation to homicide. It is, however, fair to assume that 
 the written law was, in the main, declaratory of the oral 
 law that immediately preceded it. Such, indeed, is the 
 history of law in all ages and among all peoples. The 
 human nature of great masses of people prevents the sudden 
 overturning of a body of ancient habits by mere fiat, and 
 the substitution for them of strange customs contrary to 
 inherited notions. 
 
 It is from the written law — from the Torah — that we 
 must learn the law of homicide : what constitutes the offence, 
 how the perpetrator is to be ascertained, and when ascer- 
 tained, how he is to be punished. 
 
 Each of the five books of the Torah, from Genesis to 
 
lO THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 * 
 
 Deuteronomy, contains passages bearing on these interesting 
 questions. The references in Genesis are most widely- 
 known and quoted, not because they are parts of any legal 
 code, properly so called, but because they announce broad, 
 general principles, the result of philosophical reflection, and 
 therefore appeal to a large circle who would be repelled 
 by a statement of practical law. From their nature they 
 are fitter for consideration, after we shall have made a study 
 of the book, than as an aid in the preliminary work. 
 
 It is from an examination of all this material that we 
 are to learn the Hebrew law of Homicide. This study 
 would, however, be but partial and imperfect unless we shall 
 at the same time endeavour to ascertain the state of the 
 law upon that subject among the people whom the Hebrews 
 conquered. For this there are but two sources : one the 
 Hebrew law itself, in so far as it discloses the nature of 
 the native law which it was combating, and the other 
 the code of Babylonian law, known as the Hammurabi Code, 
 said to have been promulgated by Hammurabi, King of 
 Babylon, about 2250 B.C. It was in the year 1902 that 
 M. de Morgan, while excavating the acropolis of Susa, 
 found three large fragments of a block of black diorite. 
 When joined, they formed a pillar about seven feet high, 
 and tapering from seventy-one inches to sixty-two inches. 
 At the upper end of the front side was a bas-relief 
 representing the seated sun-god Shamash, presenting the 
 code of laws to Hammurabi. Then follow on the same 
 side sixteen columns of writing, and on the reverse side 
 twenty-eight columns. On the front side five columns of 
 writing have been erased. When complete the inscription 
 probably contained forty-nine columns, four thousand lines, 
 and about eight thousand words. It is from this inscription 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 11 
 
 in the Babylonian language that the Code has been carefully- 
 studied by experts, many of whom beheve that it exerted 
 a powerful influence in shaping legal doctrines and customs 
 in all Western Asia, as far as the Mediterranean Sea. If 
 this view be correct, the Code would be some index at least 
 of the character of the law which the Hebrews encountered 
 and finally overcame. 
 
 Before entering on the subject, it may be well to reflect 
 that in the natural course of events, the law of Hammurabi 
 must have undergone changes both in Babylonia and in 
 Assyria. All communities must, in a considerable degree, 
 make their laws conform to the necessities of national life, 
 and there is no ground for believing that these great states 
 were, in this respect, exceptional. The fact that the old 
 code was for two thousand years treated with religious 
 reverence is entirely consistent with the obsolescence of 
 some of its provisions. 
 
 In discussing this ancient code, I make use of the 
 excellent work of Professor Rogers, Cuneiform Parallels 
 to the Old Testament (New York, 19 12). The Code of 
 Hammurabi is there estimated to have contained two 
 hundred and fifty-two sections, of which thirty-five (those 
 between Sees. 6^ and 100) have been erased. 
 
 We find but eleven sections in anywise bearing on 
 homicide. They are the following : 
 
 Section 153. If a man's wife cause her husband to be 
 killed for the sake of another man, they shall impale that 
 woman. 
 
 Sec. 207. (The subject of this section is introduced by 
 the preceding section, which is given here for the 
 better understanding of the matter : Sec. 206. If a 
 man have struck a man in a quarrel, and have 
 
12 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 wounded him, he shall swear, ' I did not strike him 
 intentionally', and he shall be responsible for the 
 doctor.) 
 
 If he die of the blows, he shall swear, and if he be of 
 gentle birth he shall pay one-half of a mina of silver. 
 
 Sec, 208. If he be the son of a freedman, he shall pay 
 one-third of a mina of silver. 
 
 Sec. 210. (The subject of this section is introduced by 
 the preceding section, 209, which is as follows: 
 Sec, 209. If a man have struck a gentleman's daughter 
 and have caused her to drop what was in her womb, 
 he shall pay ten shekels of silver for what was in her 
 womb.) 
 If that woman have died, they shall put his daughter 
 to death. 
 
 Sec. 212. (Sec. 211. If through blows he have caused 
 the daughter of a freedman to drop what was in 
 her womb, he shall pay five shekels of silver.) 
 
 If that woman have died, he shall pay one-half a mina 
 of silver. 
 
 Sec, 214. (Sec. 213. If he have struck a gentleman's 
 maid-servant, and have caused her to drop that 
 which was in her womb, he shall pay two shekels 
 of silver.) 
 
 If that maid-servant have died, he shall pay one-third 
 of a mina of silver. 
 
 Sec. 229. If a builder have built a house for a man, and 
 have not made it strong, and the house built have fallen 
 and have caused the death of the owner of that house, that 
 builder shall be put to death. 
 
 Sec. 230. If he have caused the death of a son of the 
 owner of the house, they shall put to death a son of that 
 builder. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 13 
 
 Sec, 231. If he have caused the death of a slave of the 
 owner of the house, he shall give to the owner of the house 
 slave for slave. 
 
 Sec. 251. If an ox given to goring belong to a man, and 
 have shown to him this vice that he is given to goring, but 
 he have not bound up his horns, and have not shut up his 
 ox, and that ox have gored a man of gentle birth and have 
 killed him, he shall pay one-half of a mina of silver. 
 
 Sec. 1^1. If he be a gentleman's slave he shall pay 
 one-third of a mina of silver. 
 
 There is here no hint of a general law of homicide. If 
 a man, having a grudge against another, would hide himself 
 and lie in wait for his coming, and then would fatally stab 
 him in the back, there is nothing in the Hammurabi Code 
 entailing any punishment for the act. 
 
 This means not that such atrocious deeds were approved 
 or condoned, but that the state had not yet accepted as 
 part of its function the protection of the lives of its citizens 
 in general. Nor does it mean that every individual man 
 was left to look out for himself, without help from anybody. 
 No great state could live in such rank disorder. The 
 reasonable inference is that minor corporations, such as 
 families, guilds, or clans, had jurisdiction over homicide. 
 Strangely enough, the Code itself gives no information, 
 direct or indirect, upon the subject. The eleven provisions 
 cited throw no light upon it. 
 
 Section 153, punishing by impalement a wife who causes 
 her husband to be killed for the sake of another man, is not 
 a homicide statute in the proper sense of the word. The 
 wife who is to be so horribly punished has not herself 
 committed the murder. She has procured another to do 
 
14 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 the deed. There is no provision in the Code for punishing 
 the actual murderer. It is thus seen that the crime of the 
 wife is her treason, her breach of marital fidelity. Indeed, 
 it would seem that if she procured the death of her husband 
 for any cause other than her preference for another man, 
 the statute would not apply. 
 
 Sections 207 and 208 refer to quarrels. The law on 
 this subject is, generally, that if a man is wounded in a 
 quarrel, and the party wounding him swears that he did 
 not intend to inflict a wound, he suffers no other penalty 
 than the payment of the doctor's fees. If, however, death 
 ensues, the penalty is adjusted according to the social status 
 of the victim. If he be of gentle birth, the penalty is a half 
 silver mina ; if a freedman's son, a third of a silver mina. 
 
 In this case the homicide is viewed as accidental. It is 
 not looked on as a crime, but merely as a trespass for which 
 damages must be paid to the representatives of the deceased. 
 As to the amount thus paid, we learn from Section 252 
 that the conventional value of a slave was one-third of a 
 silver mina. The penalties imposed for accidental homicide 
 were looked upon as mere compensation for loss sustained, 
 and included no punitive element whatever. 
 
 Sections 210, 212, and 214 refer to blows inflicted on 
 a gravid woman. The sections are obscure, and no light 
 is thrown upon the peculiarity of a man's striking a woman 
 in that condition. If we fully understood the technical terms 
 of the Code, we would probably conclude that the cases do 
 not refer to a quarrel between the man and woman, but to an 
 accidental blow received by the woman while the men were 
 quarrelling with each other. Be that as it may, if the 
 consequence of the blow be a miscarriage whereby the child 
 is lost, the amount to be paid is, in the case of a gentle- 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 15 
 
 man's daughter, ten shekels of silver, and in the case of 
 a female slave, two shekels of silver. 
 
 If, however, the death of the woman ensues, the punish- 
 ment is adjusted according to the social status of the victim. 
 If she be a gentleman's daughter, the daughter of the 
 assailant is to be put to death ; if she be a freedman's 
 daughter, the assailant pays as compensation one-half silver 
 mina ; if a slave, one-third silver mina. 
 
 The death penalty thus imposed in one case, not on 
 the perpetrator, but on his daughter, indicates that there 
 is involved no notion of a crime against the state. All the 
 other penalties are paid as compensation to the survivors 
 of the deceased. One may fairly suppose that by this 
 ancient law the father of the deceased woman was entitled 
 to kill the daughter of the assailant, and that this was 
 supposed to be exact compensation. As you have killed 
 my daughter, we will, if I kill your daughter, be even. 
 
 It is not the state which inflicts the death-penalty on 
 the innocent daughter, whose father, even, has not com- 
 mitted a crime. If he had struck a man with the same 
 result, he would merely have paid the conventional value 
 of the deceased. The inference is easy that the dead 
 woman's father could barter his right to kill the assailant's 
 daughter for a reasonable kofer, to be agreed upon between 
 the parties, or perhaps to be adjusted by a tribunal. The 
 effect of this apparently dreadful law would then be that 
 the assailant could not be discharged by the payment of 
 the conventional half silver mina, but would have to pay 
 punitive damages in addition thereto. The pervasiveness 
 of money damages in the Code would seem to warrant the 
 conclusion that in the course of time the literal meaning 
 of the Code would be modified in this direction. 
 
l6 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 Sections 2>2,g, 230, and 231 refer merely to one class of 
 persons, — builders whose structures fall down and hurt 
 somebody. If the owner is killed, the builder is put to 
 death ; if the owner's son is killed, the builder's son is put 
 to death ; if the owner's slave is killed, he shall furnish 
 another slave in his stead. There is here no pretence of 
 a crime. The builder has been guilty of an error of judge- 
 ment, or, at worst, of some degree of negligence. He 
 certainly never intended to kill any one. 
 
 The penalties show that the law does not treat the 
 builder as a criminal. Otherwise his son would not, in 
 a certain eventuality, be put to death, while he is allowed 
 to go unpunished. 
 
 From the fact that builders are the only class selected 
 for this sort of legislation, there must have been some 
 peculiar reason which is not at present ascertainable. 
 
 For the rest, we may be reasonably certain that in 
 course of time the practice oikofer also prevailed in this 
 class of cases. 
 
 Sections 251 and 252 cover the case of a known goring 
 ox allowed by his master to roam at large without his 
 horns bound. There the owner, by reason of his negligence, 
 must pay to the family the conventional value of a member 
 thereof who has been killed by the ox_, — a half-mina of 
 silver for a gentleman, a third for a slave. Punitive 
 damages there are none. 
 
 In none of these cases (except perhaps that of the 
 faithless wife) is there any evidence that the state looked 
 upon the acts punishable by death as crimes against the 
 state, or indeed as anything but private trespasses against 
 individuals. Nowhere is there any consciousness that the 
 intent to kill is a proper subject of inquiry, or that the 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 1 7 
 
 presence or absence of such intent is of any moment. 
 Nowhere is there a hint of any public duty or any public 
 officer to enforce the death penalty. 
 
 The reasonable conclusion is that all of the acts above 
 enumerated, punishable by death (except perhaps that of 
 the faithless wife), were looked upon as mere civil trespasses ; 
 many of them, by the very terms of the Code, adjustable 
 by money settlements, and the rest, in the course of time, 
 falling under the same rule. 
 
 In their origin these laws were doubtless parts of a 
 comprehensive system of retaliatory jurisprudence. In 
 order to realize this fully, it will be useful to give certain 
 additional sections of that Code, closely related in spirit 
 to those already cited. 
 
 Section ii6. If the one seized die in the house of him 
 who seized him, of blows or of want, the owner of the one 
 seized shall call the merchant to account, and if it be the 
 son of a freedman that died, they shall put his son to 
 death . . . 
 
 Sec. 19:^. If the son of a chamberlain or the son of 
 a vowed woman have said to the father who reared him 
 or to the mother who reared him, * Thou art not my father ', 
 * Thou art not my mother ', they shall cut out his tongue. 
 
 Sec. 193. If the son of a chamberlain or the son of 
 a vowed woman have known his father's house, and have 
 hated the father that reared him and the mother that reared 
 him, and have gone back to his father's house, they shall 
 pluck out his eye. 
 
 Sec. 194. If a man have given his son to a wet-nurse, 
 and that son have died in the hands of the wet-nurse, and 
 the wet-nurse, without consent of the father and mother. 
 
18 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 have substituted another child, they shall call her to account ; 
 and because, without the consent of the father and mother, she 
 has substituted another child, they shall cut off her breasts. 
 
 Sec. 195. If a man have struck his father, they shall cut 
 off his hands. 
 
 Sec. 196. If a man have destroyed the eye of a gentle- 
 man, they shall destroy his eye. 
 
 Sec. 197. If he have broken a gentleman's bone, they 
 shall break his bone. 
 
 Sec. 200. If a man have knocked out the tooth of a 
 man of his own rank, they shall knock out his tooth. 
 
 Sec. 202. If a man have struck the person of a man who 
 is his superior, he shall receive sixty strokes with an oxtail 
 whip in public. 
 
 Sec. 205. If a gentleman's slave have struck the cheek 
 of a freedman, they shall cut off his ear. 
 
 Sec. 218. If a doctor have operated with a bronze lancet 
 on a gentleman for a severe wound, and have caused the 
 gentleman's death, or have removed a cataract with a bronze 
 lancet, and have destroyed the gentleman's eye, they shall 
 cut off his hand. 
 
 Sec. 226. If a brander, without the consent of the owner 
 of a slave, have made a slave's mark unrecognizable, they 
 shall cut off the hands of that brander. 
 
 Sec, 253. If a man have hired a man to oversee his field, 
 and have furnished him with seed-grain, have entrusted him 
 with oxen, and have contracted with him to cultivate that 
 field, and that man have stolen the seed or the provender 
 and it be found in his hands, they shall cut off his hands. 
 
 Sec. 282. If a slave have said to his master, * Thou art 
 not my master ', they shall call him to account as his slave, 
 and his master shall cut off his ear. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 19 
 
 The perusal of these provisions arouses a feeling of 
 repulsion. We are apt to forget the slow steps by which 
 mankind has been educated. It need not be doubted that 
 when primitive man, before organized society, suffered 
 injury at the hand of another, he sought revenge by 
 inflicting on his enemy all the harm he could. The idea 
 of limiting the punishment to the exact measure of the 
 offence betokens the birth of moderation and of justice. 
 The crude notion that human law can make good human 
 wrong is pathetically ineradicable. The lex talionis which 
 shocks us is built on this insecure foundation. The ex- 
 perience of mankind shows that in measuring punishments 
 the feelings or desires of the injured party must be brushed 
 aside as irrelevant, and that nothing can be considered but 
 the interests jif-society as- ^wliole. The realization of this 
 truth has always destroyed the lex talionis, that is, has 
 substituted for specific retaliation, in which there is present 
 a spice of personal malice, general retaliation, which punishes 
 the culprit, but only so much and in such manner as 
 comports with the welfare of society. 
 
 When we reflect on these things, we shall be the more 
 ready to do justice to the men of the remote past, who were 
 more like us than we are always ready to admit. 
 
 The retaliation statutes of Hammurabi, which we have 
 quoted, were doubtless produced by the conditions of the 
 time. 
 
 The readiness to mutilate men evinced in this series of 
 laws, indicates a callousness that may give a clue to their 
 origin. In the military camp, where power dwells in a 
 single person, and instant obedience is indispensable, the 
 spirit of such laws is generated. It is difficult to believe 
 that they were not, as time went on, modified to suit 
 
 C 1 
 
20 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 a more peaceful environment. Whether this was or was 
 not the case, the fact stands out clear as respects homicide, 
 that under the Hammurabi Code the state had not yet 
 conceived it as a crime cognizable by it alone, in which no 
 private right can be recognized, and in which every private 
 wrong has been merged. 
 
 There is one other feature of the Hammurabi Code 
 which is to be noted, namely, the distinction between a 
 superior class of 'gentleman' and the rest of the people. 
 The distinction is presei-ved all through the law of homicide 
 and the lex talionis. That the Palestinian farmers in the 
 twelfth or thirteenth century B. C. had this sharp distinction 
 of classes is very doubtful. The great probability is that 
 the gentleman's law did not seriously affect them, and 
 that we must look to the common people's law if we would 
 get an idea of the Hammurabi influence in Palestine. 
 
 From this it appears that though the loss of a gentle- 
 man's eye was punished by the loss of the aggressor's eye, 
 and the shattering of a gentleman's limb was punished by 
 the shattering of the aggressor's limb, yet if these trespasses 
 were committed against a poor man, the aggressor paid him 
 one mina of silver (Sec. 198), and if they were committed 
 against a slave the penalty was half the price of the slave, 
 to be paid, of course, to the master (Sec. 199). 
 
 The deprivation of a tooth in an equal involved the loss 
 of the aggressor's tooth, but a poor man's tooth was atoned 
 for by one-third of a mina of silver (Sec. 201). The death 
 by blows of a gentleman's gravid daughter entailed the 
 death of the assailant's daughter, but if it was a poor 
 man's daughter who died, half a mina of silver paid for her 
 (Sec. a I a), and if she was a slave, one-third of a mina of 
 silver was enough (Sec. ^14). 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 21 
 
 Even the doctor who lost his hand when his gentleman 
 patient lost his eye, paid only half the price of the slave 
 if the latter had suffered the same misfortune, the payment, 
 of course, being made not to the victim, but to his master 
 (Sec. 2ao). 
 
 The inference seems reasonable that, if the Hammurabi 
 law exerted considerable influence in Palestine, its probable 
 effect was to establish a general custom of money settle- 
 ments for all kinds of trespasses, from a blow to wilful 
 murder. 
 
 As regards the HebrewMw of homicide, you are all 
 familiar with that one of the Ten Commandments which 
 in two words forbids murder, lo tirsah (Exod. 3o. 13 ; 
 Deut. 5. 17). While it, like the other commandments, is 
 a pregnant memorandum of human duty, it can scarcely 
 be called a law, in the ordinary sense, since it denounces 
 no punishment for infraction. In all human societies it has 
 been found that merely telling men what they should do, 
 or what they should refrain from doing, is inadequate to 
 guard society against the hostile acts of individuals 
 dominated by anger, greed, lust and other violent passions. 
 However insistent certain theorists are on trusting to the 
 spiritual strength of every individual to assure his right 
 conduct, practical statesmen and legists have always deemed 
 it necessary to make the element called ' sanction ' a neces- 
 sary feature of law. ' Sanction * means that part of the law 
 which fixes a punishment for its infraction. 
 
 It is with the Pentateuchal laws of homicide, which 
 include this indispensable element, that we deal. 
 
 The first group of them is found in Exodus, chapters ai 
 and IQ, ; the second group in Leviticus, chapter 24 ; the third 
 group in Numbers, chapter 0^^ ; the fourth in Deuteronomy, 
 
22 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 chapters 4, 19, and iZ/, and then there is a supplemental 
 group in the Book of Joshua, chapter i^o. 
 
 We sliall now give these texts in fulJ, in the following 
 order : first, the Exodus texts ; second, the Deuteronomy- 
 texts ; third, the Numbers texts ; fourth, the Joshua texts ; 
 and fifth, the Leviticus texts. In choosing this order of 
 presentation, it is necessary to remark that our purpose 
 is not to ascertain the dates of texts, but the probable 
 course of development of institutions. It may be that 
 there are elements of various ages in the same text, so 
 that one treated lower down may contain material as old 
 or older than one earlier considered. The vast work done 
 by experts in the literary field will enable any one who 
 is interested in that phase of the subject to find ample 
 guidance and instruction. 
 
 The Exodus Texts 
 Exod. 21. 12-14. He that smiteth a man {makkeh-ish) so 
 that he die, shall be put to death. But if a man lie 
 not in wait {lo sadah), but God deliver him into his 
 hand {Jia-Elohim mnah le-yado), then I will appoint 
 thee a makoni whither he shall flee. If, however, 
 a man come presumptuously {yazid) upon his neigh- 
 bour to slay him with guile {be-onnah), thou shalt 
 take him from mine altar for death. 
 
 21. 20. If a man smite his male or female slave i^abdo o 
 amato) with a rod (sJiebet) that he die under his hand, 
 nakom yinnakeni (he must be punished). 
 
 21. 21. But if he continue a day or two, lo ytikkam (he 
 need not be) ; it is his money (kesef). 
 
 21. 22. If men strive and hurt a woman with child so 
 that her fruit depart, but no ason follow, ^anosh ye- 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 23 
 
 '^miesh (he shall pay a fine) according to the claim of 
 
 the woman's husband so far as it may be approved 
 
 by the judges (zve-natan bi-flilim). 
 jzi. 123. But if ason follow, then thou shalt give nefesh 
 
 tahat nefesh (life for life). 
 %\. Q,^. Eye for eye, tooth for tooth, hand for hand, foot 
 
 for foot, 
 31. 25. Burning for burning, wound for wound, stripe for 
 
 stripe, 
 ijr. 28. If an ox gore a man or a woman that they die . . . 
 '2,1. 2g. And the ox were wont to push with his horn in 
 
 time past, and the owner was told of it and has not 
 
 kept him in, then if he has killed a man or a woman, 
 
 the ox shall be stoned and his owner also shall be 
 
 put to death [yumat), 
 21. 30. If, however, a kofer be acceptable (to the injured 
 
 family), he may pay it and save his life. 
 
 21. 31. In the case of a son or daughter so killed, the law n^ 
 
 {mishpat) is the same. 
 31. 32. In the case of a male or female slave so killed, 
 he shall pay the master thirty shekels of silver and 
 the ox shall be stoned. 
 
 22. I (2) . If a thief be found breaking in and be smitten so 1 
 
 that he die, for him there is no damim (blood-guilt). 
 22. 2 (3). Unless the sun have risen, in which case there 
 is damim (blood-guilt) for him. 
 
 The Deuteronomy Texts 
 The Deuteronomy texts are as follows : 
 Deut. 4. 41. Then Moses set apart three cities east of Jordan. 
 4. 42. That the roseah might flee thither who should 
 kill his neighbour bi-bli-ddat (unwittingly), not hating 
 
24 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 him {lo sone-lo) before, and fleeing to one of these 
 cities may live. 
 4. 43. Bezer (in the wilderness) in the plain country of 
 the Reubenites ; 
 Ramoth (in Gilead) of the Gadites, and 
 Golan (in Bashan) of the Manassites. 
 19. ^. Thou shalt set apart three cities in the midst of 
 the land which JHVH thy Elohim giveth thee 
 (Canaan, the land west of Jordan). 
 19. 3. Thou shalt construct a road, thou shalt divide thy 
 land into three districts, that every slayer {roseak) 
 may flee thither (la-mis shamah). 
 19. 4. This is the law of the slayer {debar ha-roseah)^ who 
 shall flee thither that he may live : 
 
 Whoso killeth his neighbour bi-bli-ddat (unwit- 
 tingly), not hating him {lo sone-lo) before. 
 19. 5. As a man goeth with his neighbour to the forest 
 to fell trees, and his hand fetcheth a stroke to cut 
 down a tree, and the head slippeth from the helve 
 and hit his neighbour that he die, he shall flee to 
 one of these cities that he may live. 
 19. 6. Lest the go'el ha-dam pursue the roseah while his 
 heart is hot and overtake him, because the way is 
 long, and slay him {we-hikkahu 7tefesh), though it 
 A^iA^ I was not a case for capital punishment {mishpat 
 ^^ ^ mawet) ; he not hating him before. 
 
 19. 7. Wherefore ... set apart these three cities. 
 
 19. 10. Let not innocent blood (the blood of the naki^ 
 
 dam naki) be shed in thy land which JHVH, thy 
 
 Elohim^ giveth thee for an inheritance, and thus 
 
 blood-guilt (damim) come upon thee. 
 
 1 9. 1 1 . If a man hate his neighbour and lie in wait for 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 25 
 
 him [we-arab 16) and come upon him {we-kam 
 ^alaiu) and kill him, and then fleeth to one of these 
 cities. 
 19. 12. The zikne-iro shall send and fetch him thence 
 and deliver him into the hands of the gdel ha-dam 
 that he may die. 
 19. 13. Pity him not, but put away dam ha-iiaki (blood- 
 guilt for the innocent) from Israel, that it may go 
 well with thee. 
 19. 15. One witness (ed ehad) shall not be heard against 
 any man for any ''azvon (crime) or hattat (mis- 
 demeanour) with which he may be charged. By the 
 mouth of two ^edim or of three ''edim shall the matter 
 (dabar) be established. 
 
 The Numbers Texts 
 The Numbers texts are as follows : 
 Numb, ^i^, II. Ye shall appoint you cities to be cities of 
 
 refuge i^are miklat) for you, that the slayer (roseah) 
 
 may flee thither who killeth any person unwittingly 
 
 {bi-shgagaJi). 
 2,$. liJ. And they shall be unto you cities for refuge 
 
 {le-miklat) from the^^V/, that the slayer {roseah) die 
 
 not, until he appear before the *^Edah for judgement. 
 '>,^, 13. And of these cities which ye shall give there 
 
 shall be six ^are miklat. 
 '3,^, 14. Ye shall give three cities east of Jordan and three 
 
 cities in the land of Canaan, which shall be '^are 
 
 miklat. 
 '>^^, 15. These six cities shall be for miklat for the Bne- 
 
 Israel for the ger and for the toshab among them, 
 
 that any makkeh-nefesh bi-shgagah may flee thither. 
 
26 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 35. 16. If he smite him with an instrument of iron that 
 
 he die, he is a roseah ; mot ynimat ha-roseah. 
 '^^. 1 7. If he smite him with a stone, wherewith he may 
 
 die, he is a roseah ; mot yiimat ha-roseah, 
 '^^. 18. Or if he smite him with a hand-weapon of wood 
 wherewith he may die, he is a roseah ; mot yiimat 
 ha-roseah. 
 0^^, 19. T\\^gdelha-dam shall put \}[\^ roseah to death; 
 {be-fig'o bo) when he meets him he shall put him to 
 death. 
 2fS' ^o. Or if he thrust him of hatred {be-sin'aJi) or hurl 
 
 at him by lying in wait {bi-sdiyah) and he die ; 
 2,S' 21. Or if in enmity {be-ebah) he smite him with his 
 hand that he die, the smiter (ha-makkeh) shall be 
 put to death [mot yiimat) ; he is a roseah. 
 '^f^. %\\i. The go' el ha-dam shall put to death the roseah 
 when he meets him {be-fig^o bo). 
 ^^. 2,2. But if he struck him suddenly without enmity 
 (belo-ebah) or have hurled a weapon at him (be/o- 
 sediyah) without lying in wait, 
 2)h' 23* Or without looking {beli-reot) let fall upon him 
 a stone wherewith a man may die and he die, not 
 being his enemy (oyeb), nor seeking to harm him : 
 ^^. 24. The ^£dah shall judge {we-shafepi) between the 
 makkeh (slayer) and the go el ha-dam^ in accordance 
 with these mishpatim. 
 2i^. 25. Th^^Edah shall deliver the roseah from the hand 
 of the go' el ha-dam^ and the '^Edah shall deliver him 
 to his Hr miklat whither he had fled, and there he 
 must abide until the death of the kohen ha-gadol 
 (who has been anointed with the shemen ha-hodesh 
 (holy oil)). 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 27 
 
 ^^. 26. If a roseah go out of the bounds {gebiil) of his 
 *2> miklat^ whither he had fled ; 
 
 '^^. %"]. And the go el Jia-dam come upon him {masd) 
 beyond such bounds, the go el ha-dam may put the 
 roseah to death iive-rasah). There will be no blood- 
 guilt for him (the roseah) {en lo dam). Cp. Exod. 
 2^. 1, 2 (:Z, 3). 
 
 ^^, 1^. For he should have remained in his Hr miklat until 
 the death of the kohen ha-gadol. Only after the death 
 of the kohen ha-gadol may the roseah return to his 
 ahtizzah-\^nd. 
 
 35. 29. So these shall be for you hukkat-mishpat in all 
 your moshabot.^ 
 
 ^^, 30. A makkeh nefesh : By the utterance of witnesses 
 (lefi ''edim) shall he (the go el ha-dam) put to death 
 {yirsak) the roseah. One witness may not testify 
 in a capital case [be-nefesh la-mut). 
 
 ?>S' 31 • Take no kufer for the life of a roseah, who has 
 been sentenced {rashd) to death {la-mut) ; he must 
 be put to death {mot yiimat). 
 
 '>f^. 32. Moreover, take no kofer from one that hath fled 
 to his ^ir miklat to permit his return into the canton 
 (ba-ares) (from the federal city) before the death of 
 the kohen, 
 
 ?t5' ?)'^' Ye shall not pollute the land wherein ye are : for 
 blood-guilt {ha-dam) pollutes the land, and the land 
 cannot be purified of the blood {lo-yekuppar la-dam) 
 shed in it, save by the blood of him that shed it 
 {shofek). 
 
 2 For moshabot, comp. Lev. 23. 21, 31 ; Num. 15. 2 ; and especially 
 Num. 31. 10 ; Ezek. 6. 6, where the several cities are conceived as constituent 
 parts of larger districts called moshabot. 
 
28 the ancient hebrew law of homicide 
 
 The Joshua Texts 
 Josh. 20. 2. Speak to the Bne-Israel, thus : Appoint "^are 
 ha-miklat whereof I spoke to you through Moses. 
 20. 3. That the roseah may flee thither {makkeh-nefesh 
 bi-shgagah hi-bli da at) ; they shall be for you miklat 
 from the gdel ha-dam. 
 20. 4. When he that fleeth to one of these cities stands 
 (amad) at the gate {petah shdar hair), he shall state 
 his case (debar aw) to the zikne ha-ir of that city. 
 They shall receive him into the city, and assign him 
 a place of abode. 
 20. 5. If the gdel ha-dam pursues him (and demands 
 his surrender), they shall not deliver the roseah into 
 his hand, for he smote his neighbour unwittingly 
 {bi-bli-ddat), not hating him before . 
 20. 6. He shall abide in that city until he stand (^ad^omdd) 
 before the ''Edah for judgement ila-mishpat) (and if 
 the judgement be in his favour) till the death of the 
 kohen ha-gadol for the time being. Then shall the 
 roseah return to his city and his home (to the city 
 whence he had fled). 
 20. 7. The cities appointed {wayakdishu) were : 
 Kedesh in Galilee, in Mount Naphtali ; 
 Shechem, in Mount Ephraim ; and 
 Kiryath Arba (which is Hebron) in Mount Judah. 
 20. 8. And east of Jordan : 
 
 Bezer in the wilderness upon the plain of the 
 
 Reuben tribe; 
 Ramoth in Gilead, of the Gad tribe ; and 
 Golan in Bashan, of the Manasseh tribe. 
 20. 9. These are the ''are ha-muadah for all the Bne- 
 Israel and for the ger who sojourns among them to 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 29 
 
 flee thither — every makkeh-nefesh bi-shgagah — that 
 he die not by the hand of the go el ha-dam until he 
 stand (ad'^omdo) before the "^Edah, 
 
 The Leviticus Texts 
 Lev. 24. 17. He that killeth any man {kol-nefesh adani) must 
 be put to death (mot ytimat). 
 %4, %i. ... He that killeth a man {makkeh adani) shall 
 be put to death {yttinat). 
 
 In approaching the examination of these important 
 texts, it is well to keep in mind that our object is to 
 ascertain the view of the Hebrew mind upon homicide in 
 general. We wish to learn, first, whether it was viewed as 
 a trespass against private persons, and therefore adjustable 
 by those immediately interested, or whether, on the other 
 hand, it was viewed as a crime of such gravity against the 
 state that the private wrong incident thereto was extin- 
 guished by being merged in the injury inflicted on the 
 state. 
 
 We ought, secondly, to determine what tribunal or 
 tribunals had jurisdiction of the matter, and the manner 
 of their procedure. 
 
 Our third point will be to discover what we may re- 
 specting the execution of the judgement, and, incidentally, 
 to learn the modes of punishment that were practised. 
 
 These inquiries, of course, relate to homicide as a legal 
 wrong, and not to excusable or justifiable homicide. 
 
 It is obvious that the killing of a public enemy in war 
 does not constitute the offence, since such enemy, so far from j 
 being within the peace or protection of the state, is under | 
 its ban, as one whom it is useful and meritorious to destroy. d 
 Blood so shed is called war-blood {deme milhamah) (1 Kings 
 
/</ 
 
 30 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 2. 5), and for its shedding no blood-guilt {damhn) arises 
 either against the individual slayer or against the community. 
 
 A striking example of this doctrine, which persists even 
 to our own day, is given in the thirty-first chapter of 
 Numbers. War having been declared against Midian, the 
 arch-enemy of Israel, the army gained a great victory. 
 When the officers reported their action, Moses was wroth 
 with them, because they had spared alive some that' he 
 deemed the most dangerous of Israel's foes. 
 
 Curiously enough, with this view of the matter there 
 45[as mingled another sentiment at variance with the first. 
 Though it was the army's duty to slay enemies at war with 
 the state, yet even this high purpose did not relieve the 
 
 slayer from the necessity of purifying himself, there being 
 
 implied in this the thought that homicide, however justifi- 
 able or meritorious, is never quite blameless. 
 
 ^ Do ye abide without the camp seven days : whosoeverA 
 hath killed any person, and whosoever hath touched any n 
 slain, purify yourselves (unsin yourselves, tithatteti^ from \ 
 het\ sin) on the third day and on the seventh day, and also Jt 
 your captives ' (Num. 31. 19). j^ 
 
 The peace or protection of the state was, in ancient 
 Hebrew law, supposed to be conferred, not only by the 
 state directly, but by the several cantons or districts as 
 representing the sovereignty of the state, and also by the 
 king himself as the personal incarnation of the sovereignty. 
 
 One of the striking episodes of Hebrew history illustrates 
 this : Abner was the general-in-chief of King Saul's army, 
 and cousin to the king. After Saul's death and David's 
 assumption of the crown of Judah, it was Abner who sought 
 to perpetuate the dynasty of Saul by crowning Ishbosheth 
 king over Israel. Civil war followed, Abner leading the 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 31 
 
 forces of Saul, and Joab the army of David. They met at 
 Gibeon, and Abner was defeated and started to retreat. 
 Asahel, a younger brother of Joab, started in pursuit, 
 flaming with desire to meet the great warrior in single 
 combat. The latter declined, but the fiery youth would 
 not abandon his purpose, whereupon Abner accepted his 
 challenge and slew him (2 Sam. 2. ^-23). 
 
 Subsequently, Ishbosheth quarrelled with Abner, and 
 the latter, out of revenge, offered to David his sword, 
 and his influence to make the King of Judah King of all 
 Israel. His negotiations to that end being largely successful, 
 he, at David's invitation, visited the latter's capital, Hebron, 
 to close the matter. David received him with great honour, 
 and when the treaty was concluded, dismissed him, and he 
 went *in peace' {be-shalom) (2 Sam. 3. 21, 22). 
 
 When Joab returned from an expedition and learned 
 what had happened, he was in a fury, and angrily chid his 
 royal master for what he deemed a piece of atrocious folly. 
 He did not stop there, but sent lying messengers after 
 Abner to lure him back by a pretended message from 
 King David. They succeeded too well. Joab met him 
 at the gate of Hebron in pretended amity and stabbed 
 him to death (2 Sam. 3. 23-7) under the pretence that the 
 hostilities which caused Abner to slay Joab's brother 
 Asahel were not yet ended. 
 
 David's indignation was boundless, but he was powerless 
 to break with the great chieftain. When, however, his death 
 was near and he communicated his last wishes to his son 
 Solomon, he charged the latter not to let Joab's hoar 
 head go down to Sheol in peace {be-shalom), because he 
 shed war-blood {deme-milhamali) in peace {be-shalom) 
 (i Kings 2. 5). 
 
32 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 The moral of this is plain. Though Judah and Israel 
 had not formally concluded peace at the time of Abner's 
 death, yet the latter was in treaty with David, had visited 
 Hebron on the latter's assurance, in short, was in the king's 
 peace and under his protection, and so being, was foully 
 murdered by Joab. 
 
 This doctrine of the king's peace, or the peace of the 
 state, as a protection against homicide, is of the first im- 
 portance, since its rise marks the era when homicide, from 
 being a private wrong, has become the concern of the 
 state. 
 
 An interesting old text, belonging to the zikne ha-ir 
 law, well illustrates that the doctrine had at an early period 
 penetrated to every corner of the state. It is contained in 
 Deuteronomy (21. 1-9). 
 
 One is found slain in the field. There is no clue to the 
 murderer. The peace of the state has been violated. As 
 the cities are near each other, accurate measurements must 
 be made in order to ascertain the distance between the 
 place of the crime and the various adjacent cities. Com- 
 parison of these distances establishes which is the nearest, 
 and upon it rests the immediate responsibility. In the 
 language of the day, the blood-guilt (darn) is upon it, and 
 in order to be relieved of this burden (forgiven, nikkaper), 
 solemn ceremonial disavowal is necessary. The zekenim 
 measure (a i . 2) ; they wash their hands over the sacrificed 
 heifer (21. 6) ; they make their solemn protestation of 
 innocence and ignorance : 'Our hands have not shed this 
 blood; our eyes have not seen' (21. 7). And although in 
 one verse (3) the shofetim are brought in, and in another (5) 
 the kohanim bne-Levi appear, they seem to have nothing 
 to do. Indeed, verse 5 is a commentarial exposition of 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 33 
 
 a reason for inserting th.Q kohanim bite-Levi, and runs thus : 
 
 * For them JHVH ih.y Elokiin hath chosen to minister unto 
 him and to bless by the Skem of JHVH, and. by their 
 pronouncement shall every controversy {rib) and every 
 assault inega) be decided.' 
 
 That this general assumption of responsibility for a 
 man's life was assumed by the state itself, is clear from 
 such passages as these : 
 
 *That dam naki be not shed in thy land, which JHVH 
 thy Elohim giveth thee for an inheritance, and so blood-guilt 
 {daniini) be upon thee ' (Deut. 19. 10). 
 
 ' Thou shalt put away dam ha-naki (the blood-guilt for 
 the innocent) from Israel ' (Deut. 19. 13). 
 
 Perhaps the most striking passage on this subject is 
 Genesis 9. 5 : ' Your life-blood will I require from beast and 
 man, from every man's brother {ish ahiw) will I require the 
 life of a man.' 
 
 The doctrine of double blood-guilt is here clearly 
 indicated. There is first, the primary blood-guilt incurred 
 by the perpetrator, which is expressed by the first half: 
 
 * Your life-blood will I require from man {mi-yad ha-adain) ', 
 i. e. from the slayer. Then follows the secondary blood- 
 guilt of the whole community, whose bounden duty it was 
 to prevent, or at least to punish, the crime: *At the hand 
 of every man's brother {ish ahiw) will I require the life 
 of man.' 
 
 By this expression, ish ahiw, is meant the community 
 as a whole. Instances of its use in this sense are abundant, 
 as the passages here indicated will show : Exod. 10. 23 ; 
 16. 15 ; Lev. 25. 46 ; Num. [4. 4 ; 2 Kings 7. 6 ; Jer. 13. 14 ; 
 25. 26 ; Ezek. 4. 17 ; 24. 23 ; ZZ- 3° \ 47- H ; Hag. 2. 22 ; 
 Zech. 7. 9, 10 ; Mai. 2. 10; Neh. 5. 7. 
 
 S. D 
 
34 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 The killing of a public enemy in war is, however, not 
 the only form of justifiable homicide. A person condemned 
 to death by law may, by virtue of such condemnation, be 
 killed by the person or persons designated by law, and 
 as such killing is the performance of a public duty, no 
 blame attaches therefor. In the case of Achan, who was 
 condemned to death by the oracle, the execution is fully 
 described. Joshua and the great council {Kol Israel) took 
 the condemned to the place of execution. Joshua announced 
 his doom in JHVH's name, and Kol Israel stoned him to 
 death (Josh. 7. 24, 25). 
 
 In the case of the blasphemer of the Shein^ JHVH 
 Himself gave directions for the execution by the 'Edah, 
 Moses communicated them to the '^Edah {bne-Isracl), and 
 they stoned the convict to death (Lev. 24. 14, 23). 
 
 In the case of the sabbath-breaker, JHVH Himself 
 directed that Kol ha-edah should stone him to death, and 
 they did so (Num. i^. '^^, ofi). 
 
 One convicted of manslaughter may, if he break the 
 bounds of his prison city, be lawfully executed. Such 
 execution is justifiable. It creates no blood-guilt (en lo dam) 
 (Num. ^^, 27). 
 
 Another case of justifiable homicide is when a man | 
 defends himself against attack which endangers his life or / 
 his home. If a man kills a burglar at night (before sunrise) / 
 while breaking in, such killing is justifiable. It creates no 
 blood-guilt (en lo damiin) (Exod. 22. i (2)). 
 
 We may at this point pause and, before going further, 
 sum up the contents of this introductory lecture. 
 
 The Hebrews in Egypt had some foim of internal 
 government and communal law. The latter was orally 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 35 
 
 transmitted, and presumably much of it was incorporated 
 in the subsequent written law. When they conquered 
 Palestine, they could not at once enforce this law, because 
 the zikne ha-ir of the various cantons had to reckon, or 
 thought they had to reckon, with the indigenous law which 
 was familiar to the large mass of Canaanites who continued 
 to dwell among them. The federal delegates who were 
 sent to the various cantons never succeeded in procuring 
 real compliance with the Hebrew law in many important 
 matters. Probably during the reign of Solomon began 
 a determined effort at a thorough law reform which should 
 sweep away the local customs and establish the supremacy 
 of the federal law. This movement, which lasted perhaps 
 a hundred years, ended in the final triumph of the federal 
 law, though the disruption of the monarchy during that 
 period retarded the full success of the movement in the 
 Northern Kingdom. 
 
 It is the history of this struggle for law-reform which 
 we shall endeavour to unravel from the texts. 
 
 D % 
 
II 
 
 We have now reached the point when it is our business 
 to examine minutely the texts bearing on the subject of 
 homicide. One of them, however, the Exodus text, has 
 in it elements of complication. All the other texts are 
 simpler. Deuteronomy and Numbers treat of murder and 
 of manslaughter, Joshua of manslaughter only, Leviticus of 
 murder only. Exodus, however, which, like Deuteronomy 
 and Numbers, treats both of murder and manslaughter, 
 deals also with other aspects than are elsewhere considered. 
 
 We are brought (21. 20-1) face to face with the ugly 
 slavery question, and learn that though the slave is no 
 longer a mere chattel, he has not yet the full rights of a 
 man, and the general law does not cover his case. 
 
 We find two other exceptions to be touched upon 
 hereafter. 
 
 Our purpose in this course is to deal with the general 
 law of homicide only. There may be an opportunity at 
 some future time, to consider such important subjects as 
 slavery and its history, as indeed there are many other 
 questions in Hebrew law and polity worthy of study. For 
 the present investigation, the portion of the Exodus texts 
 which immediately concerns us is composed of three verses 
 only (Exod. 21. 12-14). 
 
 They begin with the broad propositioin Jthat a man who 
 
 kills another shall be p ut to death {makkeh ish wa-met^ 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 37 
 
 mot yumat), which is followed by a limitation or qualifi- 
 cation of its generality, and this again by an emphatic 
 statement or definition of the original proposition as 
 qualified. The effect is to divide homicide into two 
 degrees : the first, for which the death penalty is in- 
 exorably imposed, we may, for convenience, call murder; 
 and the second, for which the death penalty is not imposed, 
 may be called manslaughter. 
 
 As to the quality of the offence, there is no trace of 
 the idea that it is a trespass merely. JHVH directs Moses 
 to announce these mishpatim to the community, the Bne- 
 Israel (20. 22 ; 21. i), and the enforcement of the law is to 
 be by it : I will appoint for thee the makom for the man- 
 slayer ; thoti shalt take the murderer from mine altar for 
 death. Private interests are not alluded to. Tribunals are 
 provided. When a Hebrew slave's term of service is to 
 become perpetual, the master brings him to Elohini (21.6); 
 when vindictive damages are to be ascertained, \.\\q pelilim 
 fix the amount (21. 22); a slave niaimed by his master 
 goes free, a right impossible to be enjoyed by a slave 
 without public protection ; in the only allowable case of 
 kofer the sum is ascertained by a tribunal (21. 30) ; a bailee 
 who has been robbed must appear before Elohim for judge- 
 ment (22. 8 (9)), and railing at Elohim when one's case has 
 been lost, is expressly forbidden (2!2. 27 (28)). In short, 
 we are dealing here with the prosecution by the common- 
 wealth of a high crime. As befits so serious a matter, the 
 definitions are painfully minute. 
 
 If a man comes presumptuously (yazid) upon his 
 neighbour to slay him craftily [be-ormah), he is makkeh-ish^ 
 within the meaning of the twelfth verse, and must be put 
 to death (21. 14). If he have not lain in wait {lo sadah)^ 
 
38 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 but Elohim have delivered him into his hand (Jia-Elohim 
 innah leyadd)^ he is not a makkeh-ish within the meaning of 
 the twelfth verse. 
 
 The physical acts are the same in both cases, the evil 
 effect is the same in both cases. This old Hebrew law,^ 
 however, treats these facts as irrelevant in the determination 
 of the perpetrator's degree of guilt and punishment. It 
 looks in this regard solely to intent, to motive. Only the 
 murderer forfeits his life, and this murderer is one who lies 
 in wait, who comes presumptuously, with a set purpose. 
 The words used are impressive. Lying in wait is called 
 sadah, the term employed to describe the wily tactics of 
 the hunter who pursues his game (Gen. lo. 9 ; 25. 27, 28 ; 
 27. Q,, ^^ 7, 33', Lev. 17. 13). There are other instances of 
 the use of the same word to describe a man-hunt (i Sam. 
 34. 1 1 ; Lam. 4. 1 8). 
 
 Coming presumptuously is called j'azid, a word likewise 
 used in other passages to express insolent defiance of law or 
 right (Deut. 17. 12, 13; 18. 20, 22; Isa. 33. n). 
 
 Coming with a set purpose is expressed by the word 
 be-ormah. meaning prudence, foresight (Prov. 1.4; 8. 5, 12), 
 or in a baser sense, craftiness (Joshua 9. 4). 
 
 The words describing the act of the man who is not 
 guilty of murder, but of mere manslaughter, are equally 
 striking. That he did not lie in wait (lo sadah) is naturally 
 the first and most important element of his defence. The 
 verse, however, goes further and says Jia-Elohim innah 
 ley ado {Elohim has delivered him into his hand). The 
 expression is one indicative of a state of general opinion 
 which does not hesitate to acknowledge, in a very real 
 sense, the government of God in human affairs. Under 
 such circumstances it is not unnatural, it is even logical 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 39 
 
 to conclude, that when tragedy overtakes a man with 
 stunning suddenness, unforeseen, unapprehended, it must 
 be by the act of God. Whether the tragedy results from 
 what we could call a pure accident, or from the sudden 
 conflict of two impetuous and high-strung men, who never 
 before had cause of quarrel, would make small difference 
 in such a view — the man of that day saw God's hand 
 equally in both cases. 
 
 This phrase, ha-Elohim innah leyado^ would come" to 
 have a- technical meaning among jurists, but would be so 
 generally understood that a definition of it would not be 
 thought of. Though we have no direct guidance to ascer- 
 tain its precise meaning, we are not entirely without aid 
 from other texts. There are at least two instances in which 
 a form of this verb anah is used in a manner that throws 
 light on our passage. 
 
 When Samson fell in love with a Philistine woman, he 
 took the first step in a course of living which finally led 
 to his destruction. His parents sought to dissuade him, 
 but the Biblical writer makes the reflection that they knew 
 not whereof they spoke, since it was JHVH's design to 
 bring Samson into hostile collision {to anah) with the 
 Philistines who were then lording it over Israel (Judges 
 
 14. 4). 
 
 And that the idea of a quarrel is associated with the 
 word is plain from the well-known story of the Syrian 
 general Naaman. This distinguished man was afflicted 
 with leprosy and could obtain no relief. A little Israelite 
 handmaiden of his wife told her mistress that Elisha, the 
 great prophet of Samaria, could cure him. The king hearing 
 of this, insisted on Naaman's undertaking a journey to 
 Samaria, at the same time giving him a personal letter 
 
40 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 to the king of Israel, advising the latter that he had sent 
 his favourite general to him to be cured. 
 
 The relations between the two powers were such that 
 the king of Israel, when he read the letter, construed it 
 to be a mere subterfuge. In his consternation he rent his 
 clothes, and exclaimed : Am I Elohhn^ to kill or cure ? 
 He surely seeks to quarrel with me {mii'aimeh hu li). 
 Elisha, however, soon corrected the error by telling the 
 king that Naaman^s cure was not to be by the king, but 
 by the prophet (2 Kings 5. 1-8). 
 
 In both these cases there h a subtle intimation that 
 Divine wisdom at times foments a quarrel between persons 
 not hostile to each other, in order to attain ends of justice 
 which the narrow wisdom of human courts would be unable 
 to reach. 
 
 To minds that hold these views, accidents are, of course, 
 impossible. Ever ything is ordered by \.ht Elohhn, and 
 manJs_.respo nsible only for what h e deliberately intends. 
 Hence the term ha-Elohim innah leyado comprised a toler- 
 ably large range of happenings, from the death of a man by 
 the mere slipping of his neighbour's axe from the helve, 
 to the killing in hot blood. 
 
 The law of Exod. 21. \i-\^ does not, however, stop 
 with the mere definition of homicide. It points out what 
 happened after a homicide had been committed. Whether 
 it was murder or manslaughter, the perpetrator sought 
 sanctuary ; that is, he went to the altar and took hold 
 of its horns. 
 
 The words are in the case of manslaughter: I will 
 appoint thee a ;;2^^^;;/, whither he shall flee (or go) (21. 13); 
 and in the case of murder : Thou shalt take him from mine 
 altar [mizbeak) for death (21. 14). 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 41 
 
 That makoni and mizbeah refer to the same place there 
 can be little doubt. 
 
 Before the conquest the country was divided into many 
 little kingdoms, called ^arim (cities), each of which had 
 a capital city, which was the seat of cantonal government. 
 At its gate sat the tribunals ; in the portion devoted to the 
 priests were the paraphernalia of worship. In our lectures 
 on Hebrew Polity we have pointed out the example of 
 Ophrah in the early days of Hebrew domination when the 
 zikne ha-ir practised Canaanite rites and administered the 
 law with, at least, a Canaanite infusion. The makom was 
 the ecclesiastical section of the capital, and perhaps no 
 better description of it can be given than that of Deut. 12, 
 where the imperative command is given to destroy every 
 one of them. 
 
 Ye shall utterly destroy all the mekomot^ wherein the 
 nations which ye shall possess served their Elohim, upon 
 the high mountains and upon the hills, and under every 
 green tree. And ye shall overthrow their altars {mizbehot)^ 
 and break their massebot, and burn their asherhn^ and hew 
 down iho. pesilim of their Elohim^ and destroy their names 
 out of that makom (Deut. \%. 2, 3). 
 
 The elaborate furnishing of such a makom indicates that 
 though there may have been humble shrines, popularly 
 called makoiUy scattered through the country, yet the 
 generally accepted makom was an important place in each 
 canton, the capital city. Thus we read of mekom Schechem 
 (Gen. 12. 6), of Bethel, the makom where his (xA^bram's) tent 
 had been (Gen. 13. 3) ; the makom of the mizbeah (Gen. 
 13. 4), and again of Jacob's calling the name of the makom 
 at Luz, Bethel (Gen. 28. 11-19). 
 
 Perhaps the best evidence is the fact that the Jerusalem 
 
42 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 temple, in all its glory, is spoken of by Solomon as the 
 makoni (i Kings 8. 29, 30, '^^, 
 
 That in the days of the zikne ha-ir the law of every 
 canton was administered in its own capital city cannot 
 be doubted. A person charged with homicide would be 
 tried there. If, however, there was good reason to avoid 
 trial, he could run to sanctuary, and it may be that he was 
 not limited in that respect, but could be protected if he 
 seized hold of the altar in the makom of any of the ''arim 
 in the land. 
 
 This sanctuary granted protection even to the convicted 
 criminal. 
 
 That the Hebrew law of homicide, as laid down in 
 Exodus, was based on ancient Hebrew common law is 
 probable. At all events, it represented the thought that 
 ^ilful murder generates blood-guilt, not alone in the per- 
 petrator, but in the whole community. Translated into 
 modern phrase, this means that murder is a high crime 
 against the state, and that all elements of private trespass 
 and consequent damages, which would otherwise inhere 
 in it, are submerged and annulled. 
 
 We have heretofore enlarged upon the formation of the 
 Hebrew state out of the pre-Hebraic cantons (W/w), and 
 have shown that the town-councillors {zikne Jia-ir) in- 
 sensibly fell into many of the ways of Canaanite religion 
 and law. The formative period of the state began to show 
 a decided progress towards national unity as early as the 
 time of Samuel, but his administration and that of Saul 
 were too disturbed to complete the establishment of a 
 settled commonwealth. It was the genius of David which 
 completed the work. His life, however, was largely taken 
 up in securing his country against enemies from without 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 43 
 
 and from within. Much remained to be done. David was, 
 above all, a warrior, and though he had magnificent plans 
 for welding the state into a peaceful and harmonious whole, 
 their fruition was not immediate. That he had conceived 
 a mode of establishing the supremacy of federal law, and 
 that it lacked efficiency, appears from an account in 
 the second book of Samuel. 
 
 His son Absalom was ambitious to succeed to the throne. 
 He was renowned for the beauty of his person (2 Sam. 
 14. 25) ; he made himself conspicuous by the mode of 
 wearing his hair (2 Sam. 14. 26) ; he affected a state beyond 
 the usual custom of royal princes (2 Sam. 15. i). Above 
 all, he was master of the arts of the demagogue. An 
 incidental remark in the narrative telling of this quality, 
 throws light on our subject. Absalom rose up early and 
 stood beside the way of the gate ; and it was so, that when 
 any man that had a controversy {rib) came to the king 
 for judgement {la-mishpaf)^ Absalom hailed him : From 
 which *2> art thou ? And the answer came : Thy servant 
 is from such and such a place. Then Absalom would say : 
 No doubt your case is good and just, but then the king has 
 appointed no one to hear you. O that he would appoint 
 me Shofet ba-ares, so that any man that has a rib or 
 mishpat might come to me. I would right him. All these 
 men made obeisance to him, and he received them with 
 warm marks of affection. So acted Absalom with all Israel 
 that came to the king for mishpat, and, the historian adds, 
 so stole Absalom the hearts of anshe Israel, the leading 
 men of the nation. 
 
 The narrative proves that the administration of law in 
 the several cantons had aroused discontent, and that a 
 movement in favour of larger federal supervision was making 
 
44 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 progress, or so supple a politician would not have become 
 its chief advocate. And there are circumstances happening 
 not much later which strongly confirm this view. David 
 died about 970 B.C. One of the first acts of Solomon's 
 reign was to institute a great fete at Gibeon. On that 
 night he dreamed that he prayed JHVH to give him a Icb 
 shomea\ a mind to hear and to judge [lishpot) the people, 
 to discern between the right and the wrong (i Kings 3. 9), 
 and that JHVH granted his prayer to the full 'so 
 that there was none like thee before nor will be here- 
 after' (3. 12). 
 
 And by way of illustration, there follows the story of 
 the two women and Solomon's wise judgement on their 
 dispute, and all Israel believed that the wisdom of God 
 was in him to administer justice (la-asot mishpat) (3. 28). 
 
 That he proceeded at once to reorganize the govern- 
 ment, so as to bring the central power to bear on each 
 corner of the state, appears from i Kings 4. And as a 
 result we are told that Judah and Israel dwelt safely, every 
 man under his vine and under his fig-tree, from Dan even 
 to Beersheba (1 Kings 5. 5 (4. 25)). 
 
 In the pursuit of his great federal policy, he planned to 
 make Jerusalem a point of attraction for every inhabitant 
 of the country, and for strangers from abroad. Especially 
 prominent was the group of great buildings of which the 
 Temple was the most striking and impressive. One 
 notable feature of his palace was the tdain ha-mishpat, 
 a porch for the throne where he sat as the chief judge of 
 the kingdom (i Kings 7. 7). Into the Temple was intro- 
 duced the sacrosanct Shem, the Ark of the Covenant, the 
 visible symbol of Divine Justice on earth (i Kings 8. 21). 
 
 And Solomon, by his prayer, indicated that thereafter 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 45 
 
 its high function of administering justice by oracle would 
 cease, and that ordinary courts would take its place, the 
 judges whereof would impose an oath [alak) upon a man 
 charged with injuring his neighbour, invoking God so to 
 order that the guilty might be convicted (le-harshid rashd) 
 and receive his deserts, and the innocent be acquitted 
 (le-hasdik saddik) as is meet (i Kings 8. 32). 
 
 These facts show the circumstances which led to 
 Solomon's being heralded in legend as the great juridical 
 genius of Israel. There is in his very name a hint that he 
 was determined to put an end, once for all, not only to 
 external wars, but to domestic disorders and feuds. Though 
 the boy was named Jedidiah, probably to conciliate the 
 turbulent Benjamite element in the state, by the adoption 
 of the cognomen of their eponymous ancestor (Deut. 2)'^' 12), 
 yet his father, seasoned old warrior that he was, had come 
 to see that peace was the highest ideal of a prosperous 
 state. And so, as his end drew near, he charged the prince 
 to build the Temple, which privilege, though eagerly sought, 
 had been denied him, because he had delighted in bloodshed 
 and grown great on it, and it had been reserved for a man 
 who would give the country repose {ish menuhah)^ in whose 
 reign Israel should have peace {shalom) and quiet (sheket) 
 (i Chron. 22. 6-9). 
 
 Solomon {Shelomd) was an appropriate cognomen for 
 such a man, and it was David who bestowed it on him 
 (2 Sam. 12. 24; I Chron. 22. 9). 
 
 It is probable that the first effort of the federal govern- 
 ment was to correct the cantonal government's indifference 
 to the offence of sarah^ which was the active and open 
 advocacy of Baal as against JHVH. In Ancient Hebreiv 
 Polity (pp. 51-61) I have shown the transfer of jurisdiction 
 
46 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 over this offence from the zik?ie ha-ir to the Federal High 
 Court, there called the ''Am ha-ares. This was a measure 
 to protect the state against direct assault on the established 
 religion which was its foundation. 
 
 Security of life everywhere within the kingdom was a 
 matter of no less importance. To appreciate the gravity of 
 the question thus presented, we must try to understand the 
 pre-Hebraic Canaanite law of homicide. 
 
 The common notion that it was in the pure blood-feud 
 or vendetta stage is unsupported by adequate evidence. In 
 ■-.placing before you the sources of our information in the 
 first lecture, you will remember that eleven provisions of 
 ^le law of Hammurabi [circa 2250 B. C.) were presented, 
 being the only articles of that Code in any wise bearing 
 on the subject of homicide. They show that at the time 
 of the promulgation of that Code, the Babylonian state had 
 not yet assumed jurisdiction over homicide. The inference 
 is that the law of blood-feud or vendetta, in some form, 
 was then in force. Blood-feud or vendetta is a form of 
 true law. Before a state is fully organized, certain functions 
 which ought to be exercised by it are left to the control 
 of subordinate organizations within it, such as families, 
 clans, or guilds. Homicide is one of the subjects with 
 
 which early governments are not eager to deal. 
 
 During such preparatory stages ot" a state's growth, the \ 
 vendetta is the only safeguard of human life. It protects I 
 society. Far from being an enemy of the nascent state, I 
 it is an effective aid to its development. So soon, however, j 
 as the proper stage has been reached, the vendetta law is 
 at first modified, and afterwards, when the state has assumed / 
 the whole jurisdiction over cases of homicide, it is totally 7 
 repealed and destroyed. Sporadic survivals here and there 
 
 f- 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 47 
 
 are in the nature of conscious crime, and in no wise impair 
 the force of these general rules. 
 
 The result as here sketched is inevitable. State laws 
 against homicide raise questions of fact and law which 
 cannot be determined otherwise than by regularly con- 
 stituted tribunals. 
 
 Vendetta law, on the other hand, is plain and simple, 
 and needs to make no curious inquiry into circumstances or 
 motives. A member of clan A has killed a member of 
 clan B. The latter must retaliate in kind ; for, if there 
 were no such redress, the injured clan would become the 
 mark for hostile assault from all quarters. 
 
 That state laws which punish a man for his own crime 
 only, cannot co-exist with a system which punishes without 
 regard to the question whether the victim is innocent or 
 guilty, is too obvious for argument. 
 
 The reticence of the Hammurabi Code on the subject 
 of homicide does not forbid the conclusion that the vendetta 
 law, pure and simple, was no longer dominant ; that though 
 tolerated to a degree, it had undergone modification. 
 
 It needs but little reflection to understand that the 
 vendetta law is, in effect, a perpetual civil war between 
 constituent elements of a state, and that its unbridled prac- 
 tice can have no other result than the destruction of the state. 
 
 The Hammurabi Code presents indications that it 
 realized this truth, and though it did not deal with homicide 
 directly, it ordered the several corporate elements of the 
 state to accept wergild or money satisfaction for certain^ 
 kinds of homicide. 
 
 One who killed another in a quarrel paid to the bereaved 
 family or clan or guild a certain value in silver, and there 
 the matter ended. 
 
 ^ 
 
 J/ 
 
48 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 That in course of time this principle of wergild also 
 extended to cases of wilful murder is probable. It is not 
 to be believed that great states like Babylonia and Assyria 
 failed to change their laws from time to time. Reverence 
 paid to ancient codes does not mean that they retain their 
 pristine usefulness, or that no part of them has become 
 obsolete. 
 
 We may well believe that when the Hebrews entered 
 Canaan, a thousand years after the promulgation of the 
 Hammurabi Code, the latter had been essentially changed, 
 and that the vendetta law for murder had been materially 
 modified. Be that as it may, there is no evidence that 
 unmodified vendetta law then ruled in Canaan. Every- 
 where there were ordered little kingdoms whose existence 
 would have been daily imperilled from within had such 
 licence been tolerated. 
 
 The evidence of the Hebrew legislation on the subject 
 confirms the view that the Canaanite law of homicide was 
 vendetta law as modified hy svergild (kofer)- While the 
 kings of the various '^arim did not make homicide an affair 
 of the state, they nevertheless preserved the peace of the */> 
 by permitting the tribunals to assess the proper amount 
 of kofer. 
 
 This was the state of the law when the Hebrews entered 
 Canaan, and the whole evidence tends to show that the 
 zikne ha-'^ir of the various cantons failed to administer the 
 Hebrew law whose letter and spirit were hostile to the native 
 practice of kofer. 
 
 There are hints in the Biblical writings which seem to 
 attest the existence of the practice of kofer, and to indicate 
 that the makoni priests were the intermediaries who arranged 
 terms between the parties. 
 
 V 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 49 
 
 It will be remembered that Eli's sons and Samuel's 
 sons were, in the popular mind, guilty of abusing their 
 high positions for their own material advantage. After the 
 coronation of Saul, Samuel, smarting under the national 
 repudiation implied by the establishment of the monarchy, 
 delivered a farewell address, in which, with conscious 
 integrity, he challenged any man to point to any question- 
 able transaction in his long public career. One of the acts 
 he repudiates is the taking of kofer that blinds the eyes 
 (i Sam. 12. 1-5). 
 
 The Authorized Version renders it bribe, evidently under 
 prepossession of the idea that Samuel was a shofet in the 
 later sense, a judge of a law-court, and without reflecting 
 that Samuel was the Kohens acolyte ; that as a child 
 he ministered before JHVH, girded with a linen ephod 
 (i Sam. 2. 18 ; 3. 1) ; that he was to be a Kohen neeman 
 to replace Eli's sons (2. o^^, and that all Israel recognized 
 him as nee^nan, as a iiabi of JHVH (3. 20). 
 
 That the sons of Eli, among other things, were charged 
 with profiting by kofer, may be fairly assumed, and hence 
 Samuel's defence probably alludes to the well-established 
 custom of the makom priest to assist in the negotiation 
 between the roseah and the family ^6?'^/. 
 
 Moreover, the word kofer occurs thirteen times, and the 
 Authorized Version renders it ransom in eleven of them. 
 The only other exception is in Amos 5. 12 where it also 
 renders bribe. 
 
 The proper word for bribe is shohad, which means gift, 
 since the ancient Hebrews believed that a gift to a public 
 official by a person who had or was likely to have an 
 interest in a matter before him, was a bribe. It occurs 
 twenty-one times, and in every instance the odious feature 
 S. E 
 
50 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 appears that it is designed to curry favour with a person in 
 power. The guilty (rasha)^ says Prov. 17. 23, proffers 
 shohad to avert justice, and Micah (3. 11) describes judicial 
 depravity with the bitter words : They judge for shohad. 
 
 While shohad means giving something for a considera- 
 tion which no man will avow, kofer conveys the idea of 
 a valuable consideration. The money is due as ransom, 
 solace or atonement for an injury committed. It is the 
 zvergild or damages paid by one who has killed another 
 to the head of the decedent's family or clan, and received 
 by the latter in satisfaction and discharge of all claims and 
 animosities. 
 
 However inveterate a custom like kofej^ may have been, 
 the idea that the priests would abuse their functions in 
 relation to it, would be sure to grow and to engender 
 bitterness. Popular hatred would not nicely discriminate 
 between shohad and the profits of kofer, and in fact we find 
 that Samuel's sons were charged outright with taking 
 shohad (1 Sam. 8. 3). 
 
 The one other instance in which kofer is rendered bribe 
 throws some light on the inveteracy of custom. That the 
 Northern Kingdom was slower than the Southern in purify- 
 ing the Hebrew law of Canaanite admixture, is highly 
 probable. Amos (about 750 B.C.) visited the Northern 
 Kingdom, apparently for the purpose of effecting some 
 reforms in that respect. That his utterances attracted 
 attention appears from the fact that he was directed to 
 leave the country, the priest of Bethel reporting to the 
 king of Israel that the land was not able to bear all his 
 words (Amos 7. 10, 12). Though not satisfied with con- 
 ditions in his own Judah, Amos seems to have been 
 horrified by what he saw in Israel. He comments par- 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 51 
 
 ticLilarly on evasions of the Torah, and gives particulars. 
 They sell persons into slavery w^ho are not liable to this 
 punishment (saddik) (2. 6) ; they violate certain purity 
 statutes (2. 7); they ignore the law (Deut. 24. 12, 13), 
 requiring that a pledged garment be put in the pledger's 
 possession at night (2. 8) ; they break the law (Num. 6. 3), 
 forbidding strong drink to Nazarites (2. 12); they mock 
 those who pronounce judgements according to the Torah 
 (5. 10) ; they convict the innocent {saddik)^ they take kofer 
 (5. 12). He implores them to establish mishpat (the law) 
 in the shciar (courts) (5. 15). 
 
 In this powerful invective he charges that taking kofeVy 
 though forbidden by the Torah ^ is still practised, and puts 
 the conviction of the innocent as an antithesis to taking 
 kofer y which is, in effect, letting off with a fine some who 
 should answer with their lives. 
 
 Vendetta law, modified by kofer, is perhaps the least 
 desirable of all, when a state is increasing in wealth and 
 power. Violence by turbulent chieftains is doubtless a 
 serious evil in the state, but bloodshed that may be paid 
 for in money by peaceful, wealthy citizens is much more J 
 
 shocking. ,^_ 
 
 r "The time had come when kofer for murder had become 1 
 I inconsistent with the safety of the state, and Solomon [ 
 I determined to abolish it, and to enforce the Exodus statute.^/ 
 
 There is nothing in the records to show that the ^I'hie 
 ha-ir were deprived of their function. That federal legates 
 were sent to sit with them, would appear to be certain 
 from the zihie ha-ir law of Deut. 21. 1-9, which pre- 
 scribes that in murder cases where the perpetrator could 
 not be discovered the Kohanwi {bne-Levi) were to be 
 present, and that their duty was to pronounce the law in 
 
 E 2 
 
52 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 every case, civil and criminal (kol rib ive-kol negd) (21. 5). 
 The broad statement of their powers seems intended to 
 negative any inference that their duty was limited to the 
 particular kind of case under discussion. 
 
 There is, moreover, no hint that the execution of any 
 judgement they might pronounce was to be in any new 
 mode. Under the vendetta-/^^/<?r law, the judgement doubt- 
 less was that the perpetrator of the homicide was to pay 
 to the^^V/of the bereaved family a certain amount specified 
 by the zikne ha-ir, failing which payment the go el was 
 entitled to put him to death. /Motive and circumstances 
 
 were not inqun*ed into. A Tailing by accident was not 
 dTher^fltlated Irom deliberate assassination. The great 
 change to be effected by the new federal movement was 
 •that murder was to be carefully distinguished from man- 
 fslaughter, and that neither kofer nor any other defence 
 or device could save a murderer from death. A fatal blow 
 was dealt the old pagan custom of sanctuary. It was no 
 longer to protect the murderer. Thou shalt take him from 
 mine altar for death (Exod. 21. 14). 
 
 Conc^riiing: jnanslaughter the matter is not so clear. 
 As the manslayer was still entitled to the privilege of 
 sanctuary, and as nothing is said about subsequent pro- 
 ceedings, the inference is that kofer for manslaughter was 
 tolerated. This conclusion is strengthened by the law 
 respecting the goring ox. If the master knew of his vicious 
 habit, and allowed him to go at large, and he killed a 
 person, this was held to be constructive murder by the 
 master, and the punishment denounced was death : * the ox 
 shall be stoned, and his owner also shall be put to death ' 
 (21. 29). In this case, however, kofer is expressly allowed 
 (21. 30). As constructive murder is an offence of a higher 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 53 
 
 grade than manslaughter, the probability that kofer was 
 allowable in the latter is heightened. 
 
 It may be well worth while to pause here for a moment 
 for the purpose of comparing the Hebrew law's view of > 
 homicide with that of our modern law. 
 
 The Hebrews noted cases of voluntary and of involun- 
 tary manslaughter just as we do. They did not, however, 
 hit upon any line of division between the two. Our common 
 law declares voluntary manslaughter to be the unlawful 
 killing of another, without malice, on sudden quarrel, or in ^r^ 
 h eat of passion. Involuntary manslaughter is, where a man 
 doing an unlawful act, not amounting to felony, by accident 
 kills another. 
 
 We also have fi2£ug able_ homicide, where a man doing 
 a lawful act, without any intention to hurt, by accident 
 kills another; as, for instance, where a man is hunting 
 in a park, and unintentionally kills a person concealed. 
 This we call homicide by misadventure. 
 
 The Hebrew law put under one and the same head of 
 manslaughter, the voluntary, the involuntary, and the 
 excusable homicide of our common law. They recognized 
 an element of supernatural influence in them all equally, 
 and punished them alike. 
 
 To this general classification there were but two excep- 
 tions: the constructive homicide by the gpring ox, which 
 we have just described, and the act of men, who in a quarrel 
 with each other, accidentally hurt a gravid woman. The 
 provision is obscure and leads to the suspicion of an injury 
 to the text. It nowhere speaks of the perpetrator as killing 
 the woman, or of the victim as dying. It names two kinds 
 of result to the woman, one where there is no ason^ and the 
 other where there is ason. The term aso7i is defined a 
 
54 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 meaning mischief, evil, harm (Brown-Driver, p. 62). That 
 miscarriage should be described as no mischief {welo . . . 
 ason)^ and that death should be described as mischief {ason)y 
 is certainly peculiar. The one appears to understate the 
 fact, the other to overstrain the w^ord. We have before us 
 a case which was evidently part of the Canaanite common 
 law. The Code of Hammurabi, as we have seen, has pro- 
 visions on the subject (Sections 209-14). It distinguishes 
 
 the vict ims into three classes: gentleman s daughter, poor 
 man's daughter, and gentleman's f emale slave. It divides ^ 
 the e ffect of the injury into two classes: miscarriage and 
 deatfiT^For miscarriage the damages are ten shekels, five 
 shekels, and two shekels, according to the social rank of the 
 woman ; for death, the penalty, if the victim be a gentle- 
 man's daughter, is the death of the perpetrator's daughter ; 
 if she be of the other ranks, a half-mina of silver, and a third 
 of a mina of silver, respectively. 
 
 The Babylonian law treated the miscarriage itself as 
 a punishable jnischief, while the Hebrew law in its present 
 form, declares it to be no mischief, but nevertheless imposes 
 punitive damages i^anosh yeanesh). The probability would 
 seem to be that in the case of accidental death like this, 
 the general rule prevailed that the death penalty could not 
 be imposed for homicide, unless it was committed with 
 malice aforethought. The term ""anoshyeanesh would then 
 cover the whole case, ason or no ason. The pelilim would 
 make a just appraisement of the damage suffered by the 
 woman, if she lived, or by her husband in consequence of 
 her death. This would, in effect, take the case out of the 
 list of criminal acts and reduce it to a civil trespass, for 
 which damages were recoverable — a conclusion with which 
 our modern law might readily concur (Exod. 21. ^2-5). 
 
 vt 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 55 
 
 That the first effort of the federal government to revo- 
 lutionize the ancient practice was not very successful, is 
 easily inferable from the fact that important amendments 
 to the law were soon made. These are incorporated in the 
 Deuteronomy statute, and the nature of the changes leads 
 to the suspicion that the taking of kofer for murder was 
 still practised. The family gdel^ who, by immemorial 
 custom, was entrusted with the death-warrant, did not take 
 the murderer from the altar, and it is to be feared that the 
 zikiie ha-ir and the niakom priest connived at this breach 
 of the federal law. The habit of collecting money damages 
 was deemed too valuable a privilege to abandon for the 
 sake of abstract justice or large state policy. 
 
 The new remedies introduced by the Deuteronomy 
 statute were: 
 
 1st. The positive assumption by the state of exclusive 
 jurisdiction over all homicide cases, or, in the words of the 
 text, the acknowledgement of national blood-guilt {dam) 
 for homicide. 
 
 and. The abolishment of the ancient right of the family 
 go'el to receive the warrant of execution from the zikne 
 ha-'^ir^ and the compulsory duty of the latter to entrust 
 it to a newly created federal officer for each canton — the 
 go' el ha-darn — who is not the family go el. 
 
 3rd. The abolishment of sanctuary for homicide and the 
 exclusion of the makom priests from any concern therein. 
 
 4th. The establishment of three judicial districts, and 
 the setting apart of one city in each to which every 
 perpetrator of a homicide must go. 
 
 5th. The total abolishment of kofer for manslaughter^ 
 and the_substitution therefor of internment in the separated ^ 
 city, as punishment for the crime. 
 
 J 
 
56 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 6th. A marked change in the law of evidence, by which 
 the testimony of one witness only became incompetent to 
 convict. 
 
 As regards the first and second of these points, it is to 
 be remarked that the name go' el ha-dam was the mere 
 adaptation of a word in common use : go el. The go' el was 
 that member of the family who, when it lost its head, 
 was the next friend ; a kind of sublimated executor and 
 guardian, who looked after the interests of his kinsmen 
 in trouble. And now it was the state whose new measures 
 and principles avowed that it had incurred blood-guilt 
 {dam, damim) ; that an evil fate threatened the country, 
 unless this blood-guilt was redeemed or removed. 
 
 A gdel or redeemer was needed, and thus the gdel 
 ha-dam, a being never heard of before, was created. He 
 was the state's redeemer from blood-guilt, not the avenger 
 of the victim's blood. Had he been the latter, he would 
 have been nokem ha-dam. 
 
 The confusion that exists has arisen out of the double 
 meaning of dam^ blood and blood-guilt, accompanied by 
 an exaggerated notion of ancient views concerning the 
 sanctity of blood. The Hebrews forbade the drinking of 
 blood, because nations with whom they came in contact 
 practised this habit, in association with other habits and 
 rites which the Hebrews deemed demoralizing. Dam 
 means blood. It also means blood-guilt, and even in this 
 sense it means two kinds of blood-guilt — the primary blood- 
 guilt of the perpetrator, and the secondary blood-guilt of 
 the community which the latter incurs by its failure to 
 prevent the killing, an error which it must expiate, either 
 by punishing the slayer, or, if he remains undiscoverable, 
 then by formal legal ceremony. It is with this secondary 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 57 
 
 blood-guilt, the communal blood-guilt, that our investiga- 
 tions are more immediately concerned. Its name is 
 sometimes dam, sometimes damim. 
 
 We have, in our first lecture, referred to the striking 
 passage of Genesis (9. 5), which refers the origin of this 
 keen sense of communal responsibility to the direct in- 
 struction of Noah by EloJiim^ at the very beginning of the 
 new world after the Deluge^ 
 
 The same view is expressed, or implied, in other 
 passages : 
 
 Ye shall not pollute the land wherein ye are ; for blood - 
 guilt (ha-dam) defileth the land, and the land cannot be 
 cleansed {yektippar) from the guilt of blood {la-dam) shed 
 therein, save by the blood of him that shed it. Defile not 
 therefore the land which ye shall inhabit, wherein I dwell 
 (Num. o.S- ?,?,, 34). 
 
 That dam naki be not shed in thy land, which JHVH, 
 thy Elohim, giveth thee for an inheritance, and so blood- 
 guilt (damim) be upon thee (Deut. 19. 10). 
 
 Jeremiah expresses the same idea : 
 
 If ye kill me, ye bring the guilt for innocent blood {dam- 
 naki) on yourselves, on this city, and on its inhabitants 
 (Jer. 26. 15). 
 
 And Joel does the same: 
 
 I will cleanse their blood-guilt {ive-nikketi damam) that 
 I have not cleansed; for JHVH dwelleth in Zion (Joel 
 
 4 (3)- 21). 
 
 We have, moreover, the impressive ceremony of com- 
 munal purgation from this kind of blood-guilt in Deut. 
 21. 1-9. 
 
 By the force and operation of the new federal policy 
 the realization of communal responsibility for murder 
 
53 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 became much keener in the Hebrew state than it is in our 
 modern conditions. They also felt a more urgent responsi- 
 bility for their own share in any transaction which might 
 result in loss of life, as is seen in this provision : 
 
 When thou buildest a new house, then thou shalt make 
 a battlement for thy roof, that thou bring not blood-guilt 
 (damini) upon thine house if any man fall from thence 
 (^Deut. 22. 8). 
 
 This extreme sensitiveness concerning blood-guilt was 
 not due to the fear of savage reprisal, as has been com- 
 monly thought. The instance just given is clearly an 
 ancient urban regulation, expressing developed feelings and 
 not primitive passions. 
 
 So insistent did this notion of blood-guilt become that 
 it cropped out everywhere. If the law proclaimed capital 
 punishment for an offence, it conceived blood-guilt as some- 
 how inseparable even from a legal execution, and got rid of 
 it by ascribing the blood-guilt to the convicted defendant 
 himself, whose bad conduct compelled the state to slay 
 him. The terms are: dainaw bo, the blood-guilt for him is 
 upon himself (Lev. 20. 9) ; demehem bam, the blood-guilt 
 for them is upon themselves (Lev. 20. 11, 12, 13, 16, 27; 
 I Kings 2. 2)?!)' 
 
 A community so impressed with the awfulness of blood- 
 guilt will do all in its power to avoid it. There is need for 
 untiring vigilance to ward it off. The functionary whose 
 office it is to see to the community's expiation, may well be 
 called the community's next friend. And for this position 
 there is no Hebrew word more apt than go el ha-dam, the 
 next friend of the community in warding off its blood-guilt. 
 
 According to this view the word go el expresses a direct 
 relation with the community, and the word ha-davi a con- 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 59 
 
 dition of the community which is to be protected by that 
 relation. The common notion is that the direct relation of 
 t\iQ go'el ha-dam is with the criminal. Go el is held to be 
 the avenger who smites the criminal, and ha-dam is not the 
 blood-guilt of the community, but the blood of the victim. 
 ThQ go'el ka-dain would thus be the avenger of the victim's 
 blood. The contrast is sharp. On the one hand the com- 
 munity's friend and saviour ; on the other, the criminal's 
 vengeful enemy. 
 
 In support of the former view, it may be said that no 
 instance can be found where go el does not mean one who 
 has a friendly function to perform, a function which has 
 a sustaining effect on the person for whom he acts, whose 
 go'el he is. 
 
 When one exhibits his friendliness by injuring his client's 
 adversary, he is no longer go''el^ but nokem, avenger. 
 
 Isa. 63. 4 brings this out clearly. JHVH is repre- 
 sented as going forth to take vengeance on Edom for 
 wrongs it has perpetrated against His people Israel, and 
 as declaring : 
 
 The day of vengeance {yoin nakain) (against Edom) is 
 in my heart. 
 
 The year of my redeemed (sJienat ge'ulai) (Israel) is 
 come. And in ver. 8 this relation between JHVH and 
 Israel is expressed by the parallel term moshia (saviour), 
 while in ver. 9 both terms are used together — hoshV am and 
 ge'alam. 
 
 That go'el is uniformly used as here contended, let 
 numerous instances attest : 
 
 Jacob invokes for Joseph's sons the blessing of his 
 protecting angel {Jia-matak ha-gdel) (Gen. 48. 16). 
 
 JHVH promises to redeem Isrsicl (we-ga'alli) (Exod. 
 
6o THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 6. 6), and in the song of Moses is worshipped for having 
 done it (gaalta) (Exod. 15. 13). 
 
 In Lev. 25, the redemption of the former owner of 
 land, sold by him, is spoken of, and it has the technical 
 name of gehillah (25. 24), and his act in so redeeming is 
 called yigal (25. 33). 
 
 If he be too poor to redeem, his next of kin shall do 
 so for him {gdal)^ and this friendly redeemer is the go alo 
 ha-karob elazv (25. 25). 
 
 Among the list of those who shall act as god are the 
 uncle, the uncle's son, or indeed any near kinsman {sheer 
 besaro) (25. 49). 
 
 When Zimri exterminated the whole house of king 
 Baasha of Israel, he left none of his gdalim or re'^im alive 
 (i Kings 16. 11). 
 
 Jeremiah uses the word in the same sense of redemp- 
 tion — ge'ttllak (Jer. 32. 7, 8). 
 
 He (Boaz) is one of our near relatives, of our gdalim 
 (Ruth 2. 20 ; 3. 9, 12, 13 ; 4. i-io ; 4. 14). 
 
 Thus it is seen that the word gdel presents only the idea 
 of service rendered to the friend by an act making directly, 
 and not indirectly, for his benefit. It is true that such 
 a gdel might render a kind of doubtful indirect service 
 to his friend by hurting the latter's enemy. When such 
 is the case, the word gdal does not present itself to the 
 Hebrew mind as describing the act. As we have seen from 
 Isa. ^^, 4, it is nakain which describes the vengeful aspect 
 of an act, because, however friendly it may be to the 
 beneficiary, it is hurtful to the victim. Indeed, it is the 
 only true Hebrew word for vengeance, though there may 
 have been a dialectal variation of it (iiaham) which Isaiah 
 uses in alliterative parallelism. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 6i 
 
 JHVH, the abir of Israel, says : 
 
 Oh, I will ease me {ennahein) of mine adversaries, and 
 avenge me [innakemah) of mine enemies (Isa. i. 24). 
 And he uses the word nakarn in the same sense frequently 
 
 (34. H; 35-4; 47.3; 59. 17; 61.2). 
 
 Whoever slayeth Cain, ven^^eance shall be taken on him 
 iyukkaiii) (he shall be punished) sevenfold (Gen. 4. 15 ; 4. 24). 
 
 Thou shalt not avenge {tikkom) nor bear grudge {tittor) 
 (Lev. 19. i«). 
 
 Avenge {iiekom iiikmat) the Bne-Israel of the Midianites 
 (Num. 31. 2, 3). 
 
 Mine is punishment {iiakam) and recompense {shillem) 
 (Deut. 32. 3.5). 
 
 If I whet my glittering sword and mine hand take hold 
 on judgement, I will punish (iiakam) mine enemies, and 
 will recompense {ashallem) them that hate me (Deut. 32, 41). 
 
 And the sun stood still 
 
 And the moon stayed 
 
 Until the people had avenged them (ad yikkom goy) of 
 their enemies (Joshua 10. 13). 
 
 Samson shouted at the Philistines : Nikkamti bakem (I 
 will be avenged on you) (Judges 15. 7 ; 16. 28). 
 
 It is God who vouchsafed me vengeance {iiekamot)^ 
 
 And subjected peoples to me (2 Sam. 22. 48). 
 
 Jeremiah uses the word frequently (11. 20 ; 20. 10, 12 ; 
 46. 10 ; 50. 28 ; 51. 6, 36), as does Ezekiel (24. 8 ; 25. I2, 
 14, 15, 17). Nahum does the like (i. 2), as does Proverbs 
 
 (6. 34). 
 
 Perhaps the most impressive use of the word nakam 
 in this connexion is found in passages in which it is 
 employed to denote vengeance against murderers. 
 
 He will avenge {yikkom) the blood {dam) of his servants 
 
62 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 And inflict vengeance {fiakam) on his adversaries (Deut. 
 
 3^- 43). 
 
 I will avenge the blood {zve-itikkamti damim) of my 
 servants, the prophets, and the blood {damim) of all the 
 servants of JHVH at the hand of Jezebel (2 Kings 9. 7). 
 
 In law, too, the word iiakam is used technically to 
 denote punishment of a severe kind (Exod. 21. 20, 21). 
 
 The examples given fairly justify the conclusion that 
 the go el ha-dam was the public executioner, who, by ful- 
 filling the death-sentence against murderers, relieved the 
 community of its secondary blood-guilt. 
 
 That the term should in time become disagreeable, and 
 even odious, is inevitable. In our own language there is 
 a sense of shudder in the word executioner, which was even 
 more lively in its predecessor ' headsman '. 
 
 We have now reached a point at which we may pause. 
 The old Hebrew law of Exodus has been analysed, the 
 opposition to its enforcement explained. The stern justice 
 of the state, under the guidance of the great king, has 
 entered into a death-struggle with the crude ^^/^r-justice 
 of bygone ages. Makoin priests and zikne ha-ir are, some 
 openly, some covertly, satisfied with the old and alarmed 
 at the new. The vigorous blow at sanctuary, constricting 
 its jurisdiction and limiting its power, is received with ill- 
 concealed hostility. The substitution for the substantial 
 advantage of kofer of an idea, an ideal — ^justice — a thing 
 barren of personal profit, seems like the destruction of a 
 valuable kind of property, the extinction of a vested right. 
 
 In our next lecture we shall proceed with the further 
 examination of the Deuteronomy texts, whose general effect 
 we have stated. 
 
Ill 
 
 The Deuteronomy texts on the subject of homicide are 
 three in number, and are contained in chapters 4, 19, and 
 11, Two of them, those in chapters 4 and 27, we may at 
 once set aside as having no important bearing on our 
 investigation. 
 
 The first (4. 41-3) is a mere historical note, stating that 
 Moses severed three cities east of Jordan, whither the 
 roseaJt bi-bli-ddat might flee {la-mis)^ he not entertaining 
 hatred against him {lo sone-lo) before. 
 
 There is here no attempt to define murder. There is, 
 however, an interesting novelty. Manslaughter is character- 
 ized by a term which is not used in Exodus. There the 
 expression is that God had dehvered the unfortunate victim 
 into the slayer's hand {Jia-elohim innah leyado). Here it is 
 bi-bli-ddat, that he had acted without intent, that he had 
 acted on the spur of the moment. In the latter sense of 
 stunning suddenness, the expression occurs in Job 36. 12. 
 Isaiah (5. 13), too, uses the related expression, mibbeli-ddat, 
 in the same sense. In short, the idea that death resulting 
 from a sudden quarrel in hot blood is not murder, which 
 prevails in the Exodus text, is not departed from by the 
 use of the new expression. 
 
 The third Deuteronomy text on the subject of murder 
 is one line of the old Artir-codo: (27. 15-25) : Ariir, he who 
 slays his neighbour by stealth {makkeh reeJm ba-seter) 
 (27. 24). 
 
 Here the term ba-seter conveys the idea of being under 
 cover (lying in wait), just as do the words sadah and 
 
 63 
 
 > 
 
64 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 be-onnah in the Exodus text. (Examples of its use in an 
 analogous sense are i Sam. 19. 2; 25. 20 ; 2 Sam. 12. 12.) 
 
 The important Deuteronomy text is the second, the 
 long one in the nineteenth chapter. It opens with the 
 command to divide the country west of Jordan into three 
 districts, to set apart one city in each of said districts, and 
 to construct a road to it in order that every slayer {roseah) 
 may flee thither {yaniis). It then describes the slayer who 
 is not subject to the death-penalty, using the expressions 
 employed in the first Deuteronomy text, bi-bli-ddat and 
 lo sone mittemol shil shorn (without intent or previous hatred). 
 One single case is there presented, apparently as an illustra- 
 tion of what is meant by bi-bli-dci at. A man goes into the 
 forest with his neighbour to hew wood, and in felling a 
 tree the head of the axe slips from the helve, hits his 
 neighbour and kills him. 
 
 That this is bi-bli-ddat is obvious, but it is so far short 
 of illustrating the whole meaning of that term, that one 
 is inclined to believe that the case put really belongs to 
 a series similar to those presented in Numbers, and that 
 it was either misplaced, or alternatively, that it was deemed 
 unnecessary to repeat the cases already given in Numbers, 
 and they were therefore omitted as superfluous repetition. 
 
 Some such conclusion is inevitable, when we consider 
 the definition of murder, which immediately follows. It is 
 there described as the act of killing a sone (a hated person), 
 by lying in wait for him {we-arab lo). 
 
 The word arab in this connexion is new, not being 
 used in the Exodus text. There the idea of lying in wait 
 is expressed by the words sadah and be-ormah. It is, 
 however, a word in general use, and conveys exactly the 
 same idea as the expressions employed in the Exodus text. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 65 
 
 This definition of murder excludes from that category- 
 all the cases of manslaughter derivable from the Exodus 
 text, and from the term bi-bli-ddat of this text. It may 
 therefore be regarded as certain that the single illustration 
 of manslaughter (that in the fifth verse) is not intended to 
 be exhaustive. Several other forms of manslaughter, such 
 as those we have already inferred from the Exodus text, 
 and such others as are given at length in the Numbers 
 text, are within the meaning and under the protection of 
 this statute. 
 
 Passing by the definition of the offence, we come to the 
 main purpose of the statute. 
 
 The experiment of limiting and restraining the power 
 of the sanctuary had not proved successful. Sanctuary was 
 therefore definitely abolished. The makom and the mizheah 
 were no longer of any avail. The makom priest's function, 
 so far as homicide was concerned, was at an end. 
 
 The land west of Jordan was divided into three districts, 
 in each of which a particular city was to be designated, 
 and to each of these cities there were to be highways. The 
 roseah might flee {y antes) to the designated city of his 
 district — that was the purpose of the institution. 
 
 For the first time we hear of the go'el ha-dam, the 
 federal ofificer detailed to every canton as sheriff or exe- 
 cutioner, to see that the punishment imposed by federal 
 law should be visited upon the culprit, and to guard against 
 the latter's escape by means of kofe}' or otherwise. 
 
 If the rosejaJLh.2.^ killed any one, hi-bli-ddat^ is guilty of 
 manslaughter, he must bear the punishment. No kofer 
 will be allowed. He must go to the designated city (a 
 state-prison city), there to expiate by internment his offence 
 of 'manslaughter. If he do not; no agreement for kofer 
 S. F 
 
66 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 with the dead man's family, or with their go el, with or 
 without the connivance of the zikne ha-^ir, will protect him. 
 He must die ; the go el ha-dam must put him to death. 
 A reasonable fixed time, the length of which does not 
 appear from the records, was, however, allowed, to enable 
 him to reach the designated city. If he dawdled by the 
 way and exceeded the time, he was amenable to the power 
 of t\\Qgd'elka-dam, and paid for his carelessness with his life. 
 
 This rigid law was the reason for the strict injunction 
 that the road should be in proper order, lest the culprit 
 be delayed by reason of its imperfection, and thus perish by 
 the public's neglect to keep the highway in proper repair, 
 without any delinquency on his part. 
 
 There is in this text a clear indication of the procedure. 
 The man who had killed another was tried by the zihte 
 ha-ir. The latter ought to have administered the Hebrew 
 law, that is, they should have carefully examined, in order 
 to determine whether the offence was murder or man- 
 slaughter. They were, however, as a rule, disinclined to 
 enforce the Hebrew^ law, because a conviction of murder, 
 punishable by death, would take away the family's oppor- 
 tunity for money damages. Their inclination would be to 
 find the offence manslaughter, especially because the 
 Canaanite law knew nothing of degrees of guilt in homicide. 
 Whichever the finding, murder or manslaughter, the convict 
 would have to go to the separated city, if he would escape 
 death, since in either case the go el ha-dam had a warrant 
 for his execution after the lapse of the given number of 
 days allowed the culprit to reach the designated city. 
 This warrant ran everywhere, except within the designated 
 city. 
 
 If the conviction was of murder, the culprit's object 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 67 
 
 was to take an appeal ; if of manslaughter, to undergo the 
 penalty of internment. The Deuteronomy text gives us no 
 clue as to the nature or whereabouts of this appellate 
 tribunal. One might conjecture that the three districts 
 were somehow connected with Solomon's division of the 
 country, as related in i Kings 4, and that each of the 
 designated cities had a royal governor to whom certain 
 powers in this connexion were confided. However that 
 may be^ there must have been some superior federal 
 authority in the designated city. The zihie ha-ir who 
 had condemned the man for murder, applied to this 
 authority to surrender the appellant. There were, naturally, 
 cases in which the slayer, without waiting for the discovery 
 of his crime, or for his trial, would promptly make the 
 best of his way to the separated city, where he could tell 
 the story of the happening, in his own way, to the zikne 
 ha-ir^ who, not being of the immediate vicinage, would 
 have no further information on the subject, and would 
 provisionally receive him into the city, where he was safe 
 from the warrant of the go el ha-dam. In such cases the 
 zikne ha-ir of his own city would try him in his absence, 
 and, in many cases, the result would be conviction. 
 Whether convicted in his absence or in his presence, the 
 zikne ha-ir of his own city, who had condemned him, 
 would have the right to ask for his extradition. 
 
 That the case was promptly heard and disposed of, 
 there can be no doubt. If the appellate authority (what- 
 ever it was) affirmed the judgement of the zikne Hro^ they 
 surrendered the culprit to the latter, and thereupon they, 
 the zikne Hro, delivered the prisoner to th.Q go' el ha-dam for 
 execution. It must follow, as a matter of course, that if the 
 appellate authority was of opinion that the defendant was 
 
68 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 not_guilty of murder, but of manslaughter only, they 
 retained him in the designated city, for the expiation of 
 the minor crime. No mention is made of the term of 
 detention, and it may have been for life. The circumstances 
 showThat all opportunity for kofer was intended to be 
 taken away. The gdel ha-dam did not represent the 
 family, there was no makom priest to act as mediator, and 
 even if a settlement had somehow been effected, it would 
 not have helped the culprit. As soon as he left the 
 separated city, the inflexible go el ha-dam was compelled 
 by his warrant to put him to death (Deut. 19. 12). 
 
 An interesting feature of this nineteenth chapter is the 
 announcement of what was evidently a novel principle in 
 the law of evidence. It must always be remembered that 
 in the Oracle trials witnesses as such had no function. The 
 denunciant or denunciants, under solemn adjuration, made 
 their statements, and on them the Oracle decided, there 
 being no issue joined between parties. 
 
 Doubtless, on the discontinuance of the federal oracle 
 tribunal, the denunciant took on the character of witness 
 (;ed). The whole literature shows that denunciants were 
 objects of hatred and fear to the general community, and 
 a sentiment against convicting a man on their unsupported 
 testimony naturally grew. Hence the law of 19. 15 : One 
 witness shall not be allowed to testify against a man for 
 any ^awon or hattat (i.e. any crime or misdemeanour) ; at 
 the mouth of two witnesses or of three witnesses shall the 
 matter be established. 
 
 The statute also contained a special clause permitting 
 the impeachment of witnesses in cases of sarah (a capital 
 offence), and prescribing death as the punishment for perjury 
 in such cases. 
 
V 
 
 THE ANCIENT HEBREW LAW OF HOMICIDE 69 
 
 There is one expression in the text which requires an 
 explanation. Dwelling upon the necessity of building a 
 proper highway to the designated city, in order that the 
 defendant may, in the hmited time allotted, reach that 
 city, these words are used (I cite from the Authorized 
 Version) : Lest the avenger of the blood pursue the slayer, 
 while his heart is hot (ki yekam lebabo), and overtake him, 
 because the way is long, and slay him (19. 6). 
 
 From these words a picture has been drawn in many 
 minds, something like this : A man accidentally kills another. 
 Immediately he starts to run for the designated city, hotly 
 pursued by the go'el ha-dain, and then there is a race 
 between the two for the gate of the designated city, which 
 is the goal. This view naturally assumes that a valid 
 vendetta law exists alongside of a thoroughly established 
 state law and nullifies it, and that such nullificatioti is itself 
 part of the state law. That this is an impossible position, 
 I have endeavoured to demonstrate. Besides the intrinsic 
 absurdity of the view, a word must be said of the peculiarity 
 of the transaction. 
 
 The Version renders ki by while. Because would be at 
 least as good a translation. It takes the expression his 
 heart is hot for wild, undiscriminating rage, in which the 
 worthy man is unable to distinguish between a cowardly 
 assassination and an obvious accident. The phrase is a rare 
 one. It does, however, occur in another place (Ps. 39. 4 (3)). 
 The singer utters a penitential psalm. He has been afflicted, 
 and knows that his own backslidings are to blame. He 
 humbly prays to know his end, his hope is in the Lord that 
 he may be delivered from all his transgressions and recover 
 his former health. The state of mind when he thought 
 these things, and before he spoke, he describes as ham libbi 
 
70 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 (my heart was burning (or hot) within me), meaning that he 
 hesitated to utter his prayer though he earnestly desired 
 to do so. 
 
 At most, therefore, the expression in our text would 
 mean : For the go el ha-dam is earnest (zealous), and might 
 overtake and slay him if he be delayed by bad roads. 
 
 There is an antithetical expression which confirms this 
 view. When Jacob's sons told their father the marvellous 
 tale of Joseph's high state in Egypt he could not at once 
 believe it {wayaphog libbd), Konig's Wdrterbuch (Leipzig, 
 1 910) renders this with erkalten^ so that Jacob's heart would 
 have become cold on hearing the narrative. The misunder- 
 standing is produced by the use of the word heai't. In 
 English we do not use it in that connexion. We receive 
 news coldly or with warmth, without mentioning our hearts. 
 The Hebrews, when they mentioned them, meant no more 
 than we do. 
 
 All that is meant by the sentence is that the go'el 
 ha-dam would surely execute his warrant if the defendant 
 tarried beyond his allotted time. 
 
 If this explanation be rejected, the fact still remains 
 that the code as now before us was fixed at a time when 
 the whole institution had become a thing of the past, and 
 was therefore subject to the interpretation, or misinterpreta- 
 tion, of a later age. 
 
 Respecting the change in the law of evidence for- 
 bidding the taking of the testimony of one witness, it may 
 be remarked that the records establish it as having been 
 made very early in the new movement. When Naboth was 
 charged with blasphemy against God and treasonable 
 utterances against the king, it was assumed as a matter of 
 course that two witnesses were required (i Kings 31. 10, 13). 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 71 
 
 This was in the reign of Ahab (876-854 B.C.), who was 
 a contemporary of Jehoshaphat of Judah (873-849 B.C.), 
 and the narrative runs as if the law were then so old that 
 the memory of its origin had passed away. We cannot be 
 far wrong if we refer it to Solomon's day (970-933 B.C.). 
 
 The Numbers text is the next. In some respects it is, 
 perhaps, the most interesting of all. 
 
 The designated three cities with their federal legate, 
 and their indefinite function of interference with the zikne 
 ha-ir^ have not accomplished the purpose. The go' el ha- 
 dam has not proved his ability to prevent the practice of 
 kofer. They have evidently learned how to circumvent 
 him. The whole institution is now to be thoroughly 
 remodelled. 
 
 It begins with a measure not only new but subversive 
 of a well-established policy. The guild of Levites had early 
 been selected as itinerant agents to bring home to each of 
 the cantons of the country the principles and policies of the 
 national government. Upon this point the authorities are 
 overwhelming. 
 
 J HVH spake to Aaron : Thou shalt have no inheritance 
 in their land, neither shalt thou have any part among them. 
 I am thy part {helek) and thy inheritance (jiahalah) among 
 the Bfte-Israel (Num. 18. 20). 
 
 As to the Levites : ... it is a perpetual statute {Jiukkat 
 ^olam) throughout your generation, that among the Bne- 
 Isracl they have no inheritance {itahalah) (Num. 18. 23, 24). 
 
 The Levites were not numbered among the Bne-Israel, 
 because there was no nahalah given them among the Bne- 
 Israel (Num. 26. 62). 
 
 Levi hath no helek or nahalah with his brethren. J HVH 
 is his nahalah (Deut. 10. 9). 
 
72 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 The Levite within your country {be-shaarekeiii) hath no 
 helek or nahalah with you (Deut. 12. 12 ; 14. 27, 29). 
 
 The Kohanim,the Levites, the whole tribe of Levi, shall 
 have no helek or nahalah with Israel (Deut. 18. i). 
 
 JHVH is their nahalah (Deut. 18. 2). 
 
 Only unto the tribe of Levi he gave no nahalah 
 (Josh. 13. 14). 
 
 JHVH, the Elohim of Israel, was their nahalah 
 (Josh. 13. '^'^y 
 
 Unto the Levites he (Moses) gave no nahalah among 
 them (Josh. 14. 3). 
 
 The fixed policy attested by these many records may 
 already have been somewhat trenched upon. It was at the 
 beginning of Solomon's reign that he sent the Kohen 
 Abiathar in disgrace from the court to his estate (W sadeka) 
 at Anathot (i Kings 2. 26), which then was, and till the 
 exile continued to be, a Levitical city. At all events, the 
 decree went forth that the Bne-Israel should give to the 
 Levites a portion of their own nahalah in the 'arim^ 
 together with appurtenant fields {migrash) ; that is, cantonal 
 jurisdiction over the territory so given should be abandoned. 
 This, though violating the spirit of the older law, was in 
 accordance with its letter, which merely forbade Levites to 
 have a nahalah within the "^arim {be-shaarekem). The 
 nahalah now acquired by the Levites was no longer u ithin 
 the ^arim, but outside of them. The Levites were citizens 
 of the federal state only, the jurisdiction over the newly- 
 acquired territory was in them, and the transaction was, in 
 effect, a cession of jurisdiction over the Levitical territory to 
 the federal government. 
 
 It was further enacted that out of the forty-eight federal 
 cities thus created (among which, by the by, Anathoth is 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 73 
 
 reckoned (Josh. 21. j8)), there should be six \ire ha-miklat 
 whither a roseah might flee {la-ntts). 
 
 And thereupon, the general policy being thus explicitly 
 declared, the specific purpose of the W^ niiklat is enlarged 
 upon. The roseah is now defined {'>)^. 12) as makkeh nefesh 
 bi-shgagah, one who kills a person without intending to do 
 so. The city to which he goes is miklat from the gdel^ in 
 order that the roseah may not die before he has been 
 adjudged guilty of murder by the federal court, the '^Edah 
 {'^^, 11). Three of these ^are miklat shall be east of Jordan, 
 and three west of it. The right to a federal trial for murder 
 belongs not only to the Bne-Israel, but also to the ger and 
 the toshab. The ^Edah is the final court of appeal to 
 determine whether the judgement of the local ziknc Jia-Hr 
 condemning the defendant to death for murder, shall stand 
 {^. 24). The issue presented to the ^Edah is defined as 
 being between the condemned man on the one side and the 
 go^el ha-dani on the other. 
 
 If the ^Edah refuses to afifirm the conviction of murder, 
 and declares the offence manslaughter, the go el ha-dam's 
 death-warrant is suspended, but not annulled. The prisoner 
 is remanded to the */r miklat^ there to remain. The term 
 of his confinement in that city is now fixed. He is to be 
 discharged at the death of the Kohen ha-gadol (the Koheii 
 anointed with the holy oil). If he at any time before 
 commits prison-breach, that is, goes outside of the city wall, 
 the go el ha-danis death-warrant becomes operative, and it 
 is the latter's duty to execute the prisoner. This execution 
 is lawful and justifiable. No blood-guilt arises from it 
 {en lo dam) (35. 27). 
 
 At the expiration of the prisoner's term of service the 
 death-warrant loses all force and validity. The manslayer 
 
74 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 returns to his home and estate, free from any further conse- 
 quences. His crime has been fully expiated {^^. 28). 
 
 Thereupon there is an emphatic prohibition of ko/er in 
 murder cases; the murderer must be put to death (35. 31). 
 And this is followed by an equally emphatic prohibition of 
 ko/er in cases of manslaughter ; the defendant's term in the 
 'ir miklat may not be evaded or abridged by compounding 
 
 The general policy is then vindicated by a declaration 
 of the principle that murder pollutes the land, and that the 
 land cannot atone for this pollution save by the blood of 
 the murderer {2^^. 33). And this principle is enforced by 
 the thought that JHVH dwells in the land, that JHVH 
 dwells among the Bne-Israel (35. 34). 
 
 To this Numbers text that of Joshua 20 is a mere 
 pendant. It begins by directing the appointment of six 
 "^are ha-miklat, whither the roseah {makkeh nefesh bi-shgagah^ 
 bi-bli-daat) may flee, and they shall be for miklat from the 
 go el ha-dam (20. 3). When the defendant arrives at the 
 gate of the miklat city he stands before the zikne ha-Hr of 
 that city and states his case. It is safe to affirm that he 
 always declares that it was no murder, that ha-elohim innah 
 le-yado^ that it was bi-bli-daat^ that it was bi-shgagah. 
 
 The hearing is unilateral, being, in effect, a motion to 
 grant an appeal from the judgement of the zekeuiin of his 
 '/>. The probability is, that under such circumstances a 
 prima facie case for granting the appeal was generally made 
 out, whereupon he was admitted for detention into the 
 federal city. 
 
 If the zekenim of his city, or the gdel ha-dam, believed 
 that there was no proper case for appeal, the latter went 
 to the Hr miklat and applied to the ziknc ha-'ir for the 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 75 
 
 surrender of the prisoner to his custody. This he was 
 compelled to do, because his warrant, though it ran every- 
 where else in the country, was ineffective in the federal 
 territory. Had he executed it there, he would have been 
 himself guilty of murder. It was for this reason that he 
 asked for the prisoner's surrender. This was, in effect, 
 a motion to quash the appeal. Originally the zikne ha-ir^ 
 perhaps in conjunction with a federal legate, heard the case 
 on this motion and determined it. If they decided to quash, 
 the prisoner was surrendered to the go el ha-dam (Deut. 
 J 9. T2). Under the law, as it was recast, the authorities 
 of the miklat city were shorn of this power, and the case had 
 to go to the ^Edah for trial and judgement (20. 6). 
 
 And this exclusive jurisdiction of the ^Edah is emphati- 
 cally reiterated. ' These are the ^are ha-miiadah for all 
 the Bne-Israel and for the ger whither any makkeh-nefesh 
 bi-shgagah might flee {la-nus)^ and not die by the hand of 
 the go'el ha-dam until he shall have been adjudged guilty 
 of murder by the *Edah ' (20. 9). 
 
 There is one other feature of the Numbers text which 
 must not be overlooked. It is a specific law of evidence 
 for homicide cases only, and reads thus : 
 
 H omicide {kol-makkeh-nefesh). 
 By the mouth of witnesses he (the go'el ha-dam) shall 
 put the roseah to death. One witness may not testify to 
 procure a person's death (^^, 30). 
 
 There are new features of this Numbers text which are 
 worthy of remark. 
 
 For the first time we hear of ^are miklat. It will be 
 remembered that in Exodus there was sanctuary in the 
 makomy and in Deuteronomy there were separated cities. 
 These were all in cantonal territory. Now we have federal 
 
76 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 cities with a distinctive name. All the versions render the 
 word miklat with refuge or asylum. The translators, how- 
 ever, all laboured under the prepossession that the ancient 
 institution, the sanctuary, was still in existence, and that it 
 permeated the law always. The fact is, however, that the 
 establishment of the separated city of Deuteronomy extir- 
 pated the ancient sanctuary, and created an institution 
 belonging purely to the region of civil law. It did more. 
 It gave a distinct punitive character to the internment of the 
 manslayer in the separated city, though the text lacks 
 definiteness as to the duration of the punishment. 
 
 When the system was thoroughly reconstructed, as the 
 Numbers and Joshua texts show it was, the idea of the 
 Vr miklat was no longer doubtful or confused. It was 
 a place for the detention of a convicted murderer, pending 
 an appeal to the federal court, the ^Edah, and for the 
 internment of a convicted manslayer during the term of 
 life of the Kohen hagadol then in office. 
 
 Refuge or asylum gives no adequate notion of these 
 functions of the Hr miklat. 
 
 The word miklat is obscure. It occurs nowhere else 
 than in the legal and historical passages we have cited, and 
 in their doublets in Chronicles. The root kalat, from 
 which it is derived, is represented in but one other passage 
 in the Bible. Leviticus 21. 23 speaks of a bullock or of 
 a lamb that is not perfect enough to offer for a vow {ncder)y 
 but may be accepted for a nedabah^ a gift (not for sacrifice). 
 The characteristics that constitute this defect are spoken of 
 as sarud or kaliit. The Authorized Version renders sartca*^ 
 by something superfltcotis, and kahit by something lacking, 
 recognizing a certain opposition between the two. Kautzsch 
 understands the meaning of sania'' to be that the animal 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 77 
 
 has a limb or limbs which are too long, and kalut that the 
 limb or limbs are too short. Strangely enough, the anti- 
 thetical word sariLo' occurs only in Leviticus, once in the 
 instance cited and again in 21. 18, where the Authorized 
 Version consistently renders something superjlitotis. Here 
 Kautzsch again understands it to mean having a limb or 
 limbs which are too long. 
 
 The root sara' (from which sarua' is derived) is repre- 
 sented by only one other word in the Bible. Isaiah, in the 
 course of a bitter reproach addressed to the Jerusalem 
 magnates, uses the figure (Isa. 28. 20), that the bed is too 
 short for a man to stretch himself on it [ki kasar ha-massa^ 
 nie-histarea). The verb sard^ therefore means to stretch 
 one's self at will. If the verb kalat is its opposite, as all 
 seem to agree, it must mean to be ' cabin'd, cribb'd, confined *, 
 and this meaning would agree exactly with the ascertained 
 function of the Hr miklat, the prison city. 
 
 While we are on this branch of the subject, it may be as 
 well to say a word on the subject of fleeing. The defendant 
 always flees to the *^ir miklat The verb is mis^ which 
 undoubtedly means to flee, and that in prehistoric times, 
 when murderers sought altars for asylums, they fled to 
 them, need not be questioned. The point is that the verb 
 litis became technical, and long after men had ceased running 
 to the cover of an altar, it continued to be used for the 
 acts men did under later law to stay judgement against 
 themselves. In our own language, when a man loses his 
 case, he promptly says that he will go to the Supreme 
 Court at once, though he sits still. 
 
 We may therefore admit that the word was used of old 
 when men sought the protection of the inizbeah. When, 
 however, the separated city was established, it was inevitable 
 
78 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 that a certain time would be allowed for the defendant to 
 reach it. He was not to run a race. Undoubtedly he had 
 to take his appeal without delay. The modern devices of 
 dilatory motions and endless appeals on trivial and ridicu- 
 lous points, which bring justice into contempt, would have 
 met with no tolerance. Doubtless the time set for appeal 
 was short. Unless taken within a limited number of days, 
 it was not a supersedeas^ and the public executioner {gdel 
 ha-dam) was in law bound to execute the death-warrant. 
 During the few days, however, the defendant was perfectly 
 safe. Naturally he could not stay at home. It was the 
 part of common sense to proceed at once to take his appeal. 
 And this necessity may easily be described by a word 
 meaning to act promptly, to hasten, to go at once. And this, 
 we believe, is all that the verb nus means in this connexion, 
 though it many times in other connexions means to flee, 
 to run away. 
 
 That it has other meanings than to run away in fear 
 the literature shows : 
 
 a Kings 9. 3, 10. Elisha instructed one of his corps of 
 nebVini to anoint Jehu king of Israel, and having done 
 so, to depart at once, without delay {we-7tastah we-lo 
 tehakkeh). 
 
 There are others in which the word means to turn to one 
 for help. 
 
 To whom will ye turn {tanusti) for help ? (Isa. 10. 3). 
 
 If those to whom we turned for help (iiasmi) have fared 
 thus, how shall we escape? (Isa. 20. 6). 
 
 There are still other instances in which it means an 
 impetuous forward movement, the very reverse of flight 
 from a pursuer : 
 
 He breaks in like a confined river 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 79 
 
 Which the spirit of JHVH drives before it {iiosesah bo) 
 
 (Isa. 59. 19). 
 Ye would not, but ye said : 
 
 No, on horses will we fly (iianiis) — 
 Therefore shall ye flee {teniistin) ; 
 On the fleet {kal) will we ride — 
 Therefore shall ye have fleet pursuers {yikkallu) 
 (Isa. 30. 16). 
 
 In the one instance, that of Joab, where it means seeking 
 the protection of the altar, there was really no pursuit and 
 no running away. We may be sure that Joab walked 
 calmly to the o/ie I JHYH (i Kings 2. 28, 29). 
 
 The most important passage in which the word is used 
 is in Prov. (28. ] 7). The Hebrew text is : 
 
 Adam ^ashuk be-dam nafeshy ^ ad-bor yanus ; al-yitmeku bo. 
 
 The Authorized Version is : 
 
 A man that doth violence to the blood of any person 
 shall flee to the pit ; let no man stay him. 
 
 The translation is not happy, since it conveys no clear 
 meaning. Others understand it to mean that a person 
 guilty of murder must be a fugitive till death, and that no 
 man should aid in softening his hideous fate. 
 
 It would seem, however, that these renderings rest on 
 the supposition that the bor is the grave, man's last resting- 
 place. We shall hereafter take occasion to show that bor is 
 a prison, and, moreover, that Vr miklat disappeared no later 
 than 850 B.C., and that thereafter the homicide went to the 
 bor. When we consider the Proverb in question in that 
 light, it becomes a sane, popular saying. 
 
 When the '^are miklat were replaced by prisons in 
 various places, and the accused was sent thither to await his 
 

 80 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 trial, or the result of his appeal, he would, without doubt, 
 have liked to avoid this confinement. 
 
 The Proverb is a warning to friends that helping him 
 will hurt themselves. In plain English : Don't interfere 
 with a murderer's going to prison. The ordinary mode of 
 such interference would be by surreptitiously harbouring 
 him. Al yiUneku bo means, therefore, Do not receive him. 
 Isaiah {^i?)' 15) gives us a fine instance of the use of this 
 verb tamak in a sense closely related. It is in his description 
 of the just man : 
 
 He walketh righteously and speaketh uprightly. 
 
 He despiseth the gain of oppressions. 
 
 He closeth his hands against receiving bribes {ini- 
 temok ba-shohad). 
 
 He stoppeth his ears against blood- informers. 
 
 He shutteth his eyes against the sight of evil. 
 There is another new term in this text. The defendant, 
 who is to be interned in the '^ir miklat, is now the man who 
 has VxW^Mi-shgagahddL term not before used in the criminal 
 law, either in the Exodus or the Deuteronomy text. In 
 the former it was ha-elohim ijtnah le-yado^ in the latter bi-bli- 
 da*at. For both these ideas there is now substituted the 
 general statement that the defendant acted in error, that 
 there was no intent to kill, or, as the versions render it, he 
 acted unwittingly. 
 
 One may note in this a certain change in the mental 
 atmosphere of the law courts. When the zikjte ha-Hr of 
 the various cantons were to administer the law, the act of 
 manslaughter was described as the act of God, having 
 been perpetrated without intent by man. For the federal 
 (Levitical) courts, however, there was offence in this. The 
 unfortunate slayer, however guiltless of murder, was never- 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 8l 
 
 theless a criminal of a certain grade, and the ascription of 
 the act to God was repellent. It could be defended only 
 on the subtle theory that Heaven punished in some 
 mysterious way men who think or secretly do wicked 
 things which human law and justice are too feeble and 
 short-sighted to reach. According to this theory, both the 
 manslayer and his victim "have offended Divine justice, the 
 former in a lesser, the latter in a greater degree. The crude 
 fact that one man had killed another, without warrant of 
 law, brushed aside this subtle theologizing, and the act was 
 now described as a crime, however unintentional, committed 
 by the slayer. 
 
 The word itself does not import freedom from blame. 
 Its root- word, shagag, has an equivalent, shagah^ and 
 though this means to err, to go wrong, it frequently re- 
 proaches the wanderer that it is his own wickedness which 
 led him astray. 
 
 When Saul confesses that he ought not to have sought 
 David's life, he says, wa-eshgeh (I have erred ), admitting 
 that he had done the wrongful acts, but had not realized 
 how wicked they were (i Sam. %6. ii). 
 
 Isaiah, reproaching Ephraim, says that the Kohen and 
 the Nabi have erred (wandered from the right path, shagu) 
 because of their own bad habit of drunkenness, thus charging 
 them with wickedness as the cause of their error (Isa. 128. 7). 
 
 In Leviticus the word is often used to denote certain 
 classes of doings for which men should bring sin-offerings. 
 They are all arrayed under the head of bi-shgagah (inadver- 
 tence), and may be committed by the high priest (Lev. 4. 3), 
 by the ^Edah (4. 13), by the Nasi (4. 32), and by any 
 member of the ''Am ha- ares (4. 27) ; by any person 
 whatsoever (5. 15). 
 
 S. G 
 
84 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 condition : Swear that ye will not yourselves kill me {pen 
 tifgeun bi attem) (Judges 15. 12). 
 
 When Micah reproached the Danites for their audacious 
 robbery, they bade him be silent or he and his would die 
 on the spot {pen yifge'^ti bakem anashim mare nefesh zve- 
 asaftah nafsheka we -nefesh beteka) (Judges 18. 25). 
 
 When Saul ordered his soldiers to kill the priests at Nob, 
 they would not {zve-lo abtc lifgoa' be-kohane JH VH) (i Sam. 
 22. 17). Doeg, however, did so on the spot {zva-yifgd hn 
 ba-kohanim) (i Sam. 22. 18). 
 
 When the Amalekite reported that he had killed Saul, 
 David called one of his men and ordered him to kill the 
 self-confessed assassin of JH VH's anointed : Gash, pegd bo, 
 whereupon the soldier slew him (2 Sam. i. 15). 
 
 And the words are used to describe the immediate death 
 of Adonijah at the hands of Benaiah (i Kings 2. 25). 
 
 Solomon also ordered Benaiah to execute Joab forth- 
 with by the words: Lek pegd bo (i Kings 2. 29, 31, 32, 34). 
 And the like happened to Shimei i^a-yifgd bo wayamot) 
 (i Kings 2. 46). 
 
 A man escapes a lion, and a bear kills him {nfgdo ha-dob) 
 (Amos 5. 19). 
 
 This fi rst group of four verses (Num. '^^. 16-19) i^ 
 followed by a sej)arate £ip_up jof J:.wxiigo^l)^_ T hese define 
 murder. The important elements are previous enmity 
 [sin ah, ebah) or lying in wait {sediyah), Si7iah and ebaJi 
 are synonymous. In Exodus neither word is used. In 
 Deuteronomy there is shi aJi. The words yazid and 
 be-onnah, however, which are used in the Exodus text, 
 necessarily imply it. The former indicates an insolent 
 purpose to kill, and the latter deliberate preparation for 
 carrying this purpose into effect. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 85 
 
 Scdiyah is used in Exodus, while Deuteronomy, without 
 using the word, employs a synonymous term {we-arab lo). 
 
 Thus far Exodus, Deuteronomy, and Numbers are in 
 substantial agreement. The new feature in the Numbers 
 law is the detailed description of the physical acts by 
 which murder may be committed. These are probably not 
 intended to be an exhaustive list, but they certainly go far 
 to cover the field. An iron weapon is presumed to be 
 murderous ('^^. 16) ; a stone or a wooden weapon may 
 be. Whether or not these are murderous weapons must 
 be determined by inspection, and by investigation into the 
 previous relations of the parties. If a man kill another 
 with either of them, the law requires that they be such 
 wherewith a man may die, meaning thereby, would be 
 likely to die, before their use raises the presumption that 
 murder was intended. Wherever this presumption arises, 
 it may be negatived by proof of the fact that there was no 
 previous ebah between the parties. 
 
 Murder, however, may be committed without any 
 weapon. A man may kill another with his hands. In 
 such cases ebah or sin' ah must be clearly proved (^^. 21). 
 
 Following the definition of murder is a group of two 
 verses (22-3) defining manslaughter. 
 
 The first (22) is a mere negative of 20. The latter 
 declares it to be murder if death is caused by thrusting him 
 iyehdafennu) with hatred (sin'aJt) or hurling at him {hishlik) 
 or lying in wait {sediyah). 
 
 The former declares it to be manslaughter if death is 
 caused suddenly {be-fetd) by thrusting him (Jiadafo\ without 
 hatred {ebah), or by casting upon him {hishlik) anything 
 without lying in wait {sediyah). 
 
 And to this is added verse 23, which also reduces the 
 
84 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 condition : Swear that ye will not yourselves kill me {pe7i 
 tifgeun bi atteni) (Judges 15. 12). 
 
 When Micah reproached the Danites for their audacious 
 robbery, they bade him be silent or he and his would die 
 on the spot {pen yifgeu bakem anashim mare 7iefesh ivc- 
 asaftah 7tafsheka we-nefesh beteka) (Judges 18. 25). 
 
 When Saul ordered his soldiers to kill the priests at Nob, 
 they would not [ive-lo abtc lifgoa' be-kohane JHVH) (i Sam. 
 22. 17). Doeg, however, did so on the spot {zva-ytfga hit 
 ba-kokanim) (i Sam. 22. 18). 
 
 When the Amalekite reported that he had killed Saul, 
 David called one of his men and ordered him to kill the 
 self-confessed assassin of JH VH's anointed : Gash, pegct bo, 
 whereupon the soldier slew him (2 Sam. i. 15). 
 
 And the words are used to describe the immediate death 
 of Adonijah at the hands of Benaiah (i Kings 2. 25). 
 
 Solomon also ordered Benaiah to execute Joab forth- 
 with by the words: Lek pegd bo (i Kings 2. 29, 31, 32, 34). 
 And the like happened to Shimei {wa-yifga bo wayamot) 
 (i Kings 2. 46). 
 
 A man escapes a lion, and a bear kills him {ufgao ha-dob) 
 (Amos 5. 19). 
 
 This fir st ^roup pi four verses (Num. 0^^. 16-19) is 
 followed by a separate group of two (^o^.2^Xk-.,T hese define 
 murder. The important elements are previous enmit}' 
 [sin'ahy ebah) or lying in wait (sediyah). Sin ah and ebaJi 
 are synonymous. In Exodus neither word is used. In 
 Deuteronomy there is sin aJi. The words yazid and 
 be-ormaJi, however, which are used in the Exodus text, 
 necessarily imply it. The former indicates an insolent 
 purpose to kill, and the latter deliberate preparation for 
 carrying this purpose into effect. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 85 
 
 Sediyah is used in Exodus, while Deuteronomy, without 
 using the word, employs a synonymous term {we-arab lo). 
 
 Thus far Exodus, Deuteronomy, and Numbers are in 
 substantial agreement. The new feature in the Numbers 
 law is the detailed description of the physical acts by 
 which murder may be committed. These are probably not 
 intended to be an exhaustive list, but they certainly go far 
 to cover the field. An iron weapon is presumed to be 
 murderous ('^^. 16) ; a stone or a wooden weapon may 
 be. Whether or not these are murderous weapons must 
 be determined by inspection, and by investigation into the 
 previous relations of the parties. If a man kill another 
 with either of them, the law requires that they be such 
 wherewith a man may die, meaning thereby, would be 
 likely to die, before their use raises the presumption that 
 murder was intended. Wherever this presumption arises, 
 it may be negatived by proof of the fact that there was no 
 previous ebah between the parties. 
 
 Murder, however, may be committed without any 
 weapon. A man may kill another with his hands. In 
 such cases ebak or sin^ak must be clearly proved {'^^, 21). 
 
 Following the definition of murder is a group of two 
 verses (22-3) defining manslaughter. 
 
 The first (22) is a mere negative of 20. The latter 
 declares it to be murder if death is caused by thrusting him 
 {yehdafennu) with hatred (sin^aJt) or hurling at him {hishlik) 
 or lying in wait {sediyaJi), 
 
 The former declares it to be manslaughter if death is 
 caused suddenly {be-fetd) by thrusting him (Jiadafo\ without 
 hatred {ebah), or by casting upon him {hishlik) anything 
 without lying in wait {sediyah). 
 
 And to this is added verse 23, which also reduces the 
 
86 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 offence to manslaughter, if he cast upon him {ivayappel) 
 a murderous stone, seeing him not, not being his enemy 
 (oyeb)^ nor seeking to harm him. The same principle would 
 doubtless apply if, instead of a murderous stone, it was 
 a murderous wooden instrument. 
 
 It will be noticed that the new term, be-feta\ is now 
 introduced. It means an event that not only was not 
 foreseen, but that happened suddenly, like lightning from 
 a clear sky. The expression seems apt to designate one of 
 the many quarrels which arise between high-tempered men 
 who may not even know each other, but who are suddenly 
 brought into contact, under circumstances which induce one 
 or the other to believe that he has been offended. The 
 idea thus conveyed is the same as the ha-elohim innah 
 leyado of Exodus, and the bi-bli-ddat of Deuteronomy. 
 
 The last group, four verses (24-37), are a pendant to 
 verse 12, which provides for trial by the ^Edah. 
 
 Verse 34 affirms this, by declaring that the 'Edah shall 
 judge between the slayer and the gdel ka-dam^ according 
 to the mishpatim which we have just considered. The 
 term gdel ha-dam is here used as representing what we 
 would call the commonwealth, the public in its role of the 
 prosecutor of crime. 
 
 Verse 25 provides that if the commonwealth's case is 
 not made out, the ^Edah remands the manslayer to the 
 Hr miklat^ there to abide until the death of the Kohen 
 ha-gadol. 
 
 Verses 26 and 27 provide against the manslayer's escape 
 from the */r miklat before the end of his term. 
 
 Incidentally, they reveal a feature of the negotiations 
 between the cantonal authorities and the federal govern- 
 ment. When the separated cities were found inadequate 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 87 
 
 for the purposes of the latter, and it had succeeded in 
 procuring from the cantons a cession of their jurisdiction 
 over certain cities in the various districts of the country, the 
 condition was agreed upon that a death-warrant issued by 
 the zikne ha-ir should continue to be valid everywhere in 
 the land except in places under exclusive federal jurisdiction. 
 This is the meaning of verses 16 and ^17. So soon as the 
 manslayer broke bounds, he was at any point in the country 
 subject to the enforcement of the original death-warrant, 
 which was merely suspended while he was on federal terri- 
 tory, but was not annulled or made void until he had served 
 his full term in the Hr miklat. When that had been done, 
 the warrant was dead. 
 
 A word is needed on the evidence law in this text. It 
 differs from the Deuteronomy law in several respects. The 
 latter, as we have seen, is general and applies to the hearing 
 of every crime and misdemeanour. It also affirmatively 
 requires two witnesses or three witnesses (19. 15). 
 
 Besides this general law, however, Deuteronomy has 
 another version which limits it to capital cases (17. 6). 
 
 The Numbers statute regulates murder trials only 
 (?iS' 30)* It varies from the Deuteronomy law in that while 
 it prohibits judicial action on the testimony of one witness, 
 it prescribes no specific number of witnesses as necessary. 
 It merely uses the plural, witnesses. 
 
 The probability is that the general law as stated in 
 Deut. 19, 15 remained unmodified, except in so far as to 
 permit trial and judgement on the testimony of two 
 witnesses without more. The alternative number ' three 
 witnesses', used in Deuteronomy, is difficult to explain. 
 The thought in it seems to be that the denunciant, or the 
 plaintiff, must be corroborated by two disinterested wit- 
 
88 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 nesses. By the time of the Numbers statute he had probably 
 been disqualified as a witness. Hence the change. 
 
 The Joshua text (20. 2-9) is, as has been said, a mere 
 pendant of the Numbers text. It has the peculiarity that 
 the Deuteronomic term bi-bli-ddat is used in verse 3, 
 apparently as an explanatory note to the word bi-shgagah^ 
 which it follows, and in verse 5 is used without bi-shgagah. 
 These, however, are matters of no moment. 
 
 The value of the text lies in its supplying details 
 necessary for the completion of the Numbers text. 
 
 The latter tells us that the roseah shall go to the *2> 
 miklat, and that from it he shall be taken to the seat of 
 the 'Edahy there to be tried. The Joshua text describes 
 the proceedings when he reaches the Hr miklat. His 
 admission is a question to be decided by the zekenim^ who, 
 as the city is Levitical and federal, are governed by the 
 federal law alone. As he states his own case, he would in 
 most cases declare such facts as would establish shegagah. 
 If he failed to do so, but on his own showing was a mere 
 murderer, they would not receive him, and he would be 
 delivered to the go el ha-dam for execution, but if he were 
 once admitted, the application of the go el ha-dain for his 
 surrender would have to be refused, and he would have to 
 be tried by the '^Edah. To the "^Edah, whose seat was 
 probably in Jerusalem, he would be taken by the federal 
 authorities. At that trial his 'ir would be represented by 
 its gdel ha-dam^ and perhaps by some of its zekenim. If 
 the conviction of his Hr was affirmed, he would be executed 
 forthwith. If, on the other hand, the ^Edah ruled that it 
 was manslaughter, he would be remanded to the Hr miklat 
 to serve his term. 
 
 We have still the Leviticus texts to examine. They 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 89 
 
 are silent as to the distinction between murder and man- 
 slaughter, and hence fail to indicate that the latter offence, 
 if it existed in the eyes of the law, was in any degree 
 punishable. 
 
 They have, however, one prominent feature which 
 stamps them unmistakably as federal law. The makkeh- 
 ish must be put to death (inot yiimat) (24. 17, 21). 
 
 It behoves us, therefore, to ascertain the probable reason 
 for the curtness of the passages. 
 
 They form part of a little Torah of twenty-four verses 
 (Lev. 24. 10-23). It begins by a rather full report of the 
 case tried by oracle, wherein the son of a Hebrew woman 
 by an Egyptian man was sentenced to death for blasphem- 
 ing the oracle (cursing the Shem), and shows that the 
 principle established by that case was that the Hebrew law 
 held persons not pure Hebrews {gerim) answerable to the 
 law as fully as if they were pure Hebrews (ezrah). 
 
 To this, which serves as the text, are added brief notes : 
 
 1st. That a makkeh-ish must undergo the death penalty. 
 
 2nd. That a makkeh-behemah must compensate the 
 injured party, nefesh tahat nefesh (beast for beast). 
 
 3rd. That a maimer shall be reciprocally maimed (breach 
 (sheber) for breach, eye for eye, tooth for tooth). 
 
 4th. That mishpat (law) is single — the same for ger as 
 for ezrah. 
 
 The origin of this interesting and curious document may 
 be conjectured to be somewhat as follows. The projected 
 law reform, we may be sure, was not the work of mere 
 theorists or idealists. It was a practical measure to unify 
 and solidify the kingdom. It demanded the extinguishment 
 of local customs which were hostile to the general principles 
 of the federal law. It had, however, other ends to attain. 
 
go THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 By this time the Hebrews were in unquestioned supremacy 
 in the cantons, and the g^rini^ though everywhere con- 
 siderable in numbers, were relatively powerless, as being 
 hopelessly in the minority. They would naturally protest 
 to the federal government that they were not fairly treated. 
 
 In the previous lecture it was intimated that the first 
 step in the law reform was the limitation of trial and 
 sanctuary to the cantonal capital, and that to assure the 
 execution of the law, untainted by Canaanite custom, 
 Kohanim or Levites were sent as assessors to the zikne 
 ha-ir in each of the said cities. On this point we have 
 the precious zikne ha-''ir document (Deut. 21. 1-9), which 
 happily, though not too relevantly, interjects into the pro- 
 ceedings of the zikne ha-ir this note : And the Kohanim 
 the bne-Levi shall come near; for them JHVH thy God 
 hath chosen to minister unto Him, and to bless in the name 
 of JHVH, and according to their pronouncement (^alpihem) 
 shall be decided every rib (controversy) and every nega 
 (assault) (Deut. 11. 5). 
 
 If now we imagine one of these Kohanim appointed by 
 the federal authorities to go to one of these cantons as 
 assessor, he would naturally be charged to see to it that the 
 gerim obtained full justice. The central authorities would 
 give him a sefer^ containing the great doctrine of the 
 equality of all before the law, and the fact that the founda- 
 tion case bore rather hard on the ger was an additional 
 argument to show that when the case was the other way, 
 it was just that the^^;' should receive the advantage. The 
 notes to this original sefer may fairly be presumed to be 
 the memorandum made by one of these Kohanim of three 
 classes of cases, in which he succeeded in having the doctrine 
 fairly carried out. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 91 
 
 This suggested explanation of the form of the Leviticus 
 text involves the conclusion that it w^as intended, primarily, 
 to inculcate the doctrine and policy of the state, that the 
 ger was equal in law to the ezrah^ whether such equality 
 would operate to his advantage, or to his disadvantage. 
 If such were the true origin and intent of this Leviticus 
 Torah, it would be idle to seek in it any elaboration of 
 other doctrines or principles than the one it was specially 
 intended to illustrate. For the purposes of our present 
 investigation, it may therefore be dismissed without further 
 comment. 
 
 This review of the texts would lack completeness if we 
 failed to consider the only text, other than the legal ones, 
 which has the term go^el ha-dam. It is the fourteenth 
 chapter (vv. 1-24) of 2 Samuel. 
 
 The length of this lecture, however, forbids further 
 expansion, and the matter may well go over to the next. 
 
IV 
 
 In all the Biblical literature there is no mention that 
 a gdel ever killed anybody, nor, indeed, is the term gdel 
 ha-dam used in any other than the legal passages cited, 
 and the historical notes relating thereto, save in one instance. 
 
 Absalom, having murdered his brother, Amnon, fled 
 from the royal court to his maternal grandfather. King 
 Talmai of Geshur, with whom he stayed for three years. 
 
 David's general-in-chief, Joab, was a partisan of Absalom, 
 and favoured him for the succession to the throne. Exile 
 was fatal to such pretensions, and Joab schemed for his 
 recall. 
 
 Joab was a masterful character, skilled in diplomacy 
 and great in war, who, in general, accomplished what he set 
 out to do. For good reason he did not himself ask David 
 to pardon Absalom, but contrived to put the matter to 
 David through the agency of a wise woman {ishah hakamah). 
 
 Exactly what an ishah hakamah was is not clear. There 
 are but two of them in the Bible, and both have dealings 
 with Joab. One is tempted to opine that there were legends 
 current in Israel concerning such women, and that the story 
 we are now considering was one of the series. The wise 
 woman of Abel-beth-maacah (2 Sam. 20. 18) treated with 
 Joab, caused him to raise the siege, and saved the city. 
 Her wit persuaded Joab, her wisdom controlled her towns- 
 
 92 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 93 
 
 men. And now Joab entrusted a most delicate diplomatic 
 negotiation to another ishah hakamah^ her of Tekoa. Abel- 
 beth-maacah was in the north ; Tekoa was in the south. 
 
 The story is well told. Joab knew that David longed 
 for Absalom, but would not recall him because he deserved 
 the punishment he was undergoing. The point was to 
 persuade the king that the time had come to pardon the 
 delinquent. 
 
 Joab carefully instructed his wise woman. She was to 
 be a mourning widow, one of whose sons had murdered the 
 other. Justice demanded that the murderer should be 
 executed, and his only son likewise. If this was done, her 
 beloved husband's name and family would be totally extinct. 
 She therefore implored him to stay the hand of justice and 
 in his mercy grant a pardon. Her tears and prayers pre- 
 vailed, and the king swore the great oath {hai-jfHVH)t\\2it 
 her son would be saved. 
 
 Now was the moment to remind David that he who 
 would pardon the criminal of another family should do the 
 same by his own, especially in view of the fact that the 
 people desired it. 
 
 The king at once taxed her with being Joab's envoy, 
 and she owned that she was. Her work, however, was well 
 done. She had persuaded the king to yield to his longing. 
 Joab was sent for and given leave to bring Absalom home. 
 It is in the course of the woman's fictitious story that 
 she uses the loxm go el ha-dam. The people who demanded 
 justice against the murderer are called kol-ha-inishpahah, the 
 ordinary meaning of which would be her husband's brothers 
 and their descendants. The language ascribed to them is 
 peculiar. They all speak together, and they do not address 
 themselves to the zikite ha-'ir or to any other authority, 
 
94 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 but to a lone widow who is assumed to have the guardian- 
 ship of her son, who is himself the father of a boy. Their 
 expressed desire is to kill the murderer and his son 
 (unmitehii be-nefesh ahiiu asher harag we-nashmidah gam 
 et ha-yoresh) (2 Sam. 14. 7). So runs the story. The king 
 bids her go home, that she shall not be troubled, and then 
 she goes on to pray that the go'el ha-dam may no longer 
 destroy, that they may not destroy her son (14. 11). 
 
 The whole story is obscure, though the account may 
 omit circumstances which would have made it more plau- 
 sible. The woman may, for instance, have represented 
 herself as coming from a remote place in the northern 
 mountains, where lawlessness prevailed, and where the 
 whole royal power was needed to enforce law. At all 
 events, the touch which says that the community in which 
 she lives is unable to act without her help rather strains 
 belief. Moreover, they do not speak of any one executing 
 the culprit but themselves, in the plural. It is she who 
 bethinks herself of the gdel ha-dam^ and asks that he be 
 restrained, in order that they might not kill her son. 
 
 If her application is, as it appears to be, for pardon, 
 she says nothing that is inconsistent with the theory that 
 she fears legal prosecution and conviction and the conse- 
 quent death of her son at the hands of the go el ha-dam^ 
 the federal executioner. On this view her conduct is 
 natural, since she asks the king to stay the hand of his 
 own officer. 
 
 Above all, it is necessary to remember that the whole 
 is a piece of Joab's biography, intended to exalt his diplo- 
 matic wisdom. Biographies are often romantic, and in the 
 case of popular heroes are from time to time retouched. 
 When this story took its present shape may not be easy to 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 95 
 
 determine. In any event, it can scarcely be looked on as 
 authority for law in the time of David. If we had the 
 biography of Joab from which this story was probably 
 extracted, the difficulties of interpretation might readily 
 disappear. It is significant, however, that ih^ go'el ha-dam 
 is never spoken of in the literature after Joab. He was 
 also the last who took refuge by the Altar in Jerusalem, and 
 his death in that holy place marked the downfall of the 
 whole idea of sanctuary. 
 
 The general conclusions which we have reached con- 
 cerning the go' el ha-dam and the '/r miklat, as stages in an 
 extensive law reform, demand that the results of this move- 
 ment be ascertained. 
 
 Its end was the establishment of a federal court in 
 every canton of the land, each of which had executive 
 officers to execute its judgements. 'Judges {shofetim) and 
 officers [shoterim) appoint in every one of thy cities {she- 
 'arekd), who shall judge the people with just judgement 
 (mishpat-sedekY (Deut. i6. i8). 
 
 It was Jehoshaphat (873-849 B.C.) who, after a hundred 
 years, gave to the grandiose conceptions of Solomon the 
 final touch which assured their triumph. 
 
 The story is told in 2 Chronicles. 
 
 He began his reign by placing garrisons in all the ^arim 
 of Judah, and in the ^arim of Ephraim that had been taken 
 by his father Asa (17. 2). In the third year he sent his 
 sarim (princes) into every corner of the land to instruct 
 in the ^are Yektidah (17. 7), and with them he sent legal 
 experts (Levites and kohanim) to re- enforce their statesman- 
 like arguments with the statement of the principles and 
 practices of the Hebrew law, and they taught in Judah, 
 carrying with them the sefer tor at JHVH, and went about 
 
96 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 through all the "^are Yehtidah and taught the people 
 
 (17-8,9). 
 
 When the ground was thus carefully prepared and there 
 were sufficient forces everywhere to assure obedience, he 
 took the final step. He set judges (shofetini) in the land, 
 in all the ""ariin of Judah, city by city (19. 5). 
 
 Moreover, he established a supreme court in Jerusalem, 
 composed of Levites, kohanim^ and eminent chiefs to 
 administer mishpat JHVH, and the ordinary rib (suits) 
 (19. 8). 
 
 For cases concerning the king's revenues or estates, the 
 court had a special president (Nagid), Zebadiah ben Ishmael, 
 who was doubtless the king's confidential minister. 
 
 The jurisdiction of the court was appellate only. There 
 is no hint of original jurisdiction, even in matters royal. 
 The wording is unmistakable. Every rib (cause) which 
 will come up to you from your brethren in the several "^arim 
 ye shall instruct them so that they trespass not against 
 JHVH and so wrath come upon yon. And the causes are 
 thus classed : ben dam le-dam (homicide cases, whether 
 murder or manslaughter) ; beti torah le-miswah^ le-htikkim 
 ti-le-mishpatim (this comprehends all other classes of cases). 
 
 The establishment of this appellate tribunal at Jerusalem 
 is described at large in Deuteronomy. The charge, how- 
 ever, which in Chronicles is addressed to the judges of the 
 supreme court, is here directed to the judges of the courts of 
 first instance in the several ''arim. 
 
 If there arises a case {dabar la-mishpat) of murder or 
 manslaughter {be^i dam le-dam) or any other cause {ben din 
 le-din uben nega la-nega\ dibre ribot), or any law, or an 
 assault, any controversy in thy cities {bishe'areka)^ arise 
 and go up to the makom which JHVH thy God will choose 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 97 
 
 for thee (Jerusalem). Go to the Kohanim^ the Levites, 
 and the shofet then in office, and inquire, and they shall 
 instruct thee as to the law. According to their pronounce- 
 ment thou shalt act, being heedful to obey exactly. Ac- 
 cording to the tor ah which they shall teach thee, and 
 according to the mishpat which they shall tell thee, must 
 thou act, swerving therefrom neither to the right nor the 
 left. And he that will act contumaciously {be-zadon), not 
 heeding the Koheji standing to minister there before JHVH 
 thy God, or the shofet, that man shall die that evil may be 
 removed from Israel. And the whole people shall hear 
 and fear, that there be no more contumacy (Deut. 17. 8-13). 
 
 Great care was exercised to give specific instructions 
 for the guidance of these judges in the ^arim. They must 
 have constituted an elaborate little code, fragments of 
 which are still preserved. 
 
 One of the most interesting is in Exodus. 
 
 Do not heed a popular cry to convict nor decide a 
 cause, either to please the powerful {rabbim), or to favour 
 the poor {dal, ebyon) (Exod. 23. 2, 3, 6). 
 
 Abhor a false cause, nor condemn to death the naki 
 (once acquitted), or the saddik (one that is innocent). The 
 guilty cannot escape the justice of heaven (Exod. 23. 7). 
 
 Take no gift (shohad). It blindeth the wise and 
 perverteth the cause of the innocent {dibi'c saddikim) 
 (Exod. 23. 8). 
 
 Do not oppress a ger ; ye know a gers life ; ye were 
 yourselves gerim in Egypt (Exod. 23. 9). 
 
 Here is another from Leviticus : 
 
 Do no unrighteousness in mishpat \ respect not the per- 
 son of the poor {dal)^ nor honour the person of the mighty 
 {gadol). Judge in righteousness {be-sedek) (Lev. 19. 15). 
 S. H 
 
98 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 Be not a prosecutor (rakil), nor be thou eager for thy 
 neighbour's blood (19. 16). 
 
 Hate not thy brother in thy heart, nor wantonly rebuke 
 him, nor fasten guilt upon him (19. 17). 
 
 Nurse no vengeance or grudge, but love thy neighbour 
 as thyself (19. 11). Do no unrighteousness in mishpat with 
 respect to middah (measurement), to mishkal (weight), or to 
 mesurah (content) (19. '^^, 
 
 Deuteronomy has several. 
 
 Moses says : I charged your shofetivi at that time : 
 Hear both sides {shamoa ben ahekem) and judge righteously 
 (sedek) between them, ezrak orger (Israelite or non-Israelite) 
 (Deut. I. 16). 
 
 Do not respect persons in mis/ipat, hear the little as 
 well as the great, fear not the face of man, mishpat is of 
 God. The cause that is too hard for you, bring it to me ; 
 I will hear it (Deut. i. 17). 
 
 JHVH regard eth not persons nor taketh gifts (shohad) ; 
 He deals mishpat for the fatherless and the widow, He loves 
 the^^r (Deut. 10. 17, 18). 
 
 Shofetim and shoterim appoint thou in all thy cities 
 (shearekd) which J H VH thy God giveth thee to thy tribes, 
 who shall judge the people with just judgement [mishpat- 
 sedek). Thou shalt not wrest judgement {mishpat), nor 
 take a gift {shohad)^ for shohad blindeth the eyes of the 
 wise and perverteth the cause of the innocent (dibre saddi- 
 kim). Justice, justice shalt thou follow (Deut. 16. 1^-20). 
 
 The fathers shall not be put to death for the children, 
 neither shall the children be put to death for the fathers. 
 A man shall be put to death for his own crime {be-hefo). 
 Pervert not the mishpat of the ger nor of the fatherless 
 (Deut. 24. 16,17). 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 99 
 
 If men have a controversy (rib) and bring it for judge- 
 ment, the judges shall acquit the innocent {saddik) and 
 convict the guilty {i^ashci) (Deut. 25. i). 
 
 Artir he that taketh shohad to condemn to death one 
 who was once acquitted {naki) (Deut. 27. 2.5 ; cf. Exod. 23. 7). 
 
 That the system so established was complete is mani- 
 fest. The details in Lev. 19. '^^ show that the judges were 
 custodians of standards of weights and measures, and this 
 is an index of the care exercised to judge righteously. 
 
 The penalty of death for one kind of bribery appears 
 to be fixed in Deut. 2^7. 25, and the deliberate disregard of 
 the decision of the supreme court was declared a capital 
 offence in Deut. 17. 12. 
 
 With the establishment of this system the whole 
 machinery of sanctuary, of separated city, of ^are miklat^ 
 of go el ha-dam, as well as the judicial functions of the 
 zikne ha-Hvj of the several cities and of the '^Edah^ were 
 swept away, and kofer fell into oblivion. 
 
 The great question of murder or manslaughter {ben dam 
 le-dam) was tried in every Hr according to the principles 
 of the Hebrew law, as authoritatively expounded by the 
 supreme court at Jerusalem. All vestiges of Canaanite law 
 disappeared, leaving only a few literary survivals buried in 
 this or that phrase or odd sentence of the legal codes. 
 
 When Jehoshaphat died in 849 B.C., he well deserved 
 as an inscription on his monument the words of the 
 Chronicler (3 Chron. 19. 4) : 
 
 ' He went out among the people from Beersheba to 
 Mount Ephraim and brought them back to JHVH, the God 
 of their fathers.' 
 
 It is a strange trait of universal history that men who 
 accomplish beneficial changes in the law of their country 
 
 H % 
 
lOO THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 remain obscure, while the names of warriors, who often 
 afflict it with miseries, go sounding through the ages. It 
 happens that the men who carried through Jehoshaphat's 
 plans are known. The Chronicler has preserved their 
 names. No one reads them. In this legal essay, however, 
 they deserve to be repeated. 
 
 The princes {sarini) who led the movement were : Ben- 
 hail, Obadiah, Zechariah, Nethanel, and Micaiah. The 
 Levites were Shemaiah, Nethaniah, Zebadiah, Asahel, 
 Shemiramoth, Jehonathan, Adonijah, Tobijah, and Tob- 
 adonijah ; and the priests (kohanini) Elishama and Jehoram 
 (2 Chron. 17. 7, 8). 
 
 All honour to this great company of statesmen and 
 jurists, benefactors of mankind, and to their master, 
 Jehoshaphat ! 
 
 It is pleasant to fancy that some such sentiment in- 
 spired the prophet Joel to name the place where, on the 
 great day, the nations were to be judged, the Valley of 
 Jehoshaphat (Joel 4. 2, la). 
 
 The firm establishment of the Hebrew law in Judah 
 must have influenced the northern kingdom. Jehoshaphat 
 and the kings of Israel were in close alliance, Jehoshaphat's 
 son and successor married King Ahab's daughter, and the 
 two kingdoms marched peacefully side by side. Neverthe- 
 less, the movement for Torahy law, was slower in the north 
 than in the south. In our second lecture reference was 
 made to the hostile criticism on this subject uttered 
 a hundred years later by the prophet Amos. 
 
 The success of these great reform measures had incidental 
 consequences, in modifying methods of legal procedure, 
 and in rooting out some legal principles which revolted the 
 Hebrew conception of justice. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE lOI 
 
 In Canaanite law the presence of the accused was not 
 necessary. The zikne ha-ir could try and adjudge his case 
 in his absence. Moreover, at such trial the accuser was 
 the all-sufficient witness. Then, too, a man acquitted might 
 be tried again. Twice in jeopardy was no defence. 
 
 These features of Canaanite law are inferred from the 
 energetic opposition to them in the Torah. That the old 
 law permitted the trial of a person in his absence, appears 
 from the demand of the anshe ha-Hr of Ophrah, that Gideon's 
 father should surrender his son for execution, the latter 
 having been convicted of a capital offence. Had he been 
 present, participating in the trial, the demand would have 
 been superfluous (Judges 6. 30). 
 
 And there is another similar case under the law of the 
 zikne ha-'^ir. A woman charged with gross fraud on the 
 marital relation may be tried in her absence and brought 
 out for execution (Deut. 22. 21). 
 
 In the Hebrew law a trial in the absence of the defendant 
 was inconceivable. Even in the days of oracle trials, which 
 were not trials in the legal sense, there being no issue 
 between parties, the accused were always present. The 
 reported cases attest this fact (Achan s case, Joshua 7. 14- 
 18 ; Jonathan's case, i Sam. 14. 38-42). 
 
 When trials were instituted, the rule was still more 
 strongly insisted on (Deut. i. 16, 17). 
 
 That one witness was all that the Canaanite law required, 
 and that a man might thus be at the mercy of an enemy, 
 is readily inferred from the almost passionate opposition of 
 the Hebrew code to that practice. 
 
 ' The murderer shall be put to death by the mouth of 
 witnesses. One witness shall not testify against any person 
 to cause him to die' (Num. '^^. 30). 
 
I02 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 ' At the mouth of two witnesses, or three witnesses, shall 
 he that is worthy of death be put to death ; at the mouth 
 of one witness he shall not be put to death. The hands 
 of the witnesses shall be first upon him to put him to 
 death, and afterward the hand of kol ha-'^ani ' (Deut. 17. 
 
 6,7). 
 
 * One witness shall not rise up against a man for any 
 crime or misdemeanour charged against him ; at the mouth 
 of two witnesses, or at the mouth of three witnesses, shall 
 the matter be established ' (Deut. 19. 15). 
 
 In the Northern Kingdom, which was less zealous than 
 Judah in protecting the Hebrew law against Canaanite 
 infusion, the rule of two witnesses was firmly established 
 in the time of Ahab, the friend and contemporary of 
 Jehoshaphat (i Kings iZi. 10, 18). 
 
 So rooted was the idea of two witnesses in the Hebrew 
 mind that when JHVH instructed the prophet Isaiah to 
 take a roll and write in it concerning Maher-shalal-hash- 
 baZy he did so with two witnesses (Isa. 8. 2). Jeremiah 
 called in subscribing witnesses to a deed (Jer. 32. 10, 12), 
 and in his prayer afterwards he refers this fact to the express 
 command of JHVH : Thou didst say to me,0 Lord JHVH, 
 Buy the field for money and take witnesses (Jer. 32, 25). 
 
 That the Canaanite law permitted a man accused and 
 acquitted to be tried again, and convicted and punished, is 
 provable by the same character of evidence. The Hebrew 
 law piles protest upon protest against punishing the naki, 
 the man once acquitted. 
 
 When it is remembered that down to the time of David 
 certain cases were tried by the oracle, it becomes apparent 
 that an acquittal, being recognized as the judgement of 
 Heaven, and as such infallible, was necessarily final and 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 103 
 
 irreversible, and that another trial for the same offence was 
 inconceivable. 
 
 Hence the criminal law has a terminology of its own 
 which brings out necessary distinctions. An innocent man 
 is saddik, a guilty one rashd. To acquit the innocent is 
 hisdik, to convict the guilty is hirshia\ to acquit one who 
 has committed a transgression, or to allow him to escape 
 conviction, is nikkah. 
 
 The difference between an innocent man and one 
 legally declared to be innocent by acquittal, is also marked. 
 The former, as has been said, is saddik (innocent), the latter 
 is naki (not guilty). 
 
 In this exculpatory verdict there lurked then, as in our 
 own day, the hidden thought which the Scotch broadly 
 speak out by their verdict of not proven. This comes out 
 clearly in one of the laws of the judge-code, already referred 
 to : Do not condemn to death the naki or the saddik ; for 
 I will not acquit the guilty (Exod. ^^3. 7). The judge is 
 here exhorted to have no scruples about freeing the naki, 
 however strongly he may be convinced of his guilt, and of 
 the error which produced the former acquittal. He is 
 forcibly reminded that there is justice in Heaven which 
 corrects human errors. In that tribunal a guilty man 
 cannot plead his former acquittal by an earthly court. 
 
 So, too, in Deut. 19. 10. Elaborate provision is there 
 made in order that a man guilty of manslaughter, which 
 is not a capital offence, shall not be put to death. The 
 declared object is that the blood of the naki shall not be 
 shed, an act which would bring blood-guilt {damim) upon 
 the whole community. The man guilty of manslaughter 
 and punishable, therefore, is naki (acquitted of murder). 
 
 Indeed, the word naki very often means to be freed 
 
I04 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 from something, in contrast with the idea of having been 
 entirely y^^^ from any connexion with it. 
 
 If Abraham's messenger should do his errand and 
 others cause it to fail, he shall be 7iaki (freed, acquitted) 
 of his obligation (Gen. 34. 41). And the word is used in 
 a like sense in Joshua 2. 17-20. If a man's ox gore a man 
 to death, his owner shall be naki (i.e. acquitted of guilt 
 under certain circumstances) (Exod. 21. 28-32). 
 
 When the community has ceremonially cleared itself 
 of blood-guilt {nikkapper) for one slain by an unknown, it 
 prays to be naki (acquitted) (Deut. 21.8). 
 
 A man whose place is in the army is freed {naki) from 
 that duty when he has newly married (Deut. 24. 5). 
 
 There are many passages which bear out our interpre- 
 tation of saddik^ rasha\ hisdik, hirshia\ and nikkah. Here 
 are some of them : i Kings 8. 32 ; 2 Chron. 6. 23 ; Exod. 21. 
 28 ; 22. 8 ; 23. 8 ; Deut. 25. i, 2 ; Isa. 5. 23 ; 2 Sam. 14. 9 ; 
 15. 4; Exod. 20. 7; Deut. 5. 11 ; Jer. 30. 11 ; 46. 28 ; 
 Amos 2. 6 ; 5. 12 ; Joel 4 (3), 21 ; Nahum i. 3 ; Ps. 94. 21 ; 
 Prov. 17. 15, 23, 26; 18.5,17; 19.5,9; 24. 24; Job 9.. 20; 
 
 34. 17. 
 
 Perhaps the most objectionable feature of Canaanite 
 law was a remnant of a prehistoric lex talionis^ which had 
 as a consequence that for the crime of the father, the son 
 might be put to death, and perhaps also that for the crime 
 of the son, his father might be put to death. 
 
 The only concrete case on this subject is unfortunately 
 hypothetical, and, worse still, fictitious. The wise woman 
 of Tekoa states the law to be that, when a man who has 
 a son and heir, kills another who has not yet a son and 
 heir, the murderer and his son shall both be put to death. 
 Strange as this may seem, it is quite in the spirit of the 
 
THE ANCIENT HEBREW LAW OF HOMICIDE IO5 
 
 Code of Hammurabi. The murderer is punished because 
 of his crime ; his son is executed because, if he were not, 
 the murderer's position would be superior to his victim's ; 
 whereas the object of the Code is to make the criminal's 
 disadvantage just as great as that suffered by his innocent 
 victim. That the son had done nothing to deserve death 
 was purely irrelevant in a system of laws which judged the 
 guilt, in acts which we look upon as high crimes, by results 
 and not by intentions or motives ; which, in short, looked 
 upon penalties, however personal and severe, as being in 
 the nature of damages for private trespasses, demanding 
 just compensation, regardless of motive. That children 
 were in some sense the father's chattels, and not free citizens 
 of the state, is a proposition involved in the other. Their 
 feelings or sufferings did not enter into the legal thought of 
 the Hammurabi Code. Hence, when a man's son was 
 doomed to death for his father's offence, it was the father 
 who was being punished, just as if he had been deprived 
 of a slave, of a ship, or of any other valuable chattel. 
 
 This principle was repellent to Hebrew law, being in 
 direct opposition to the Hebrew thought that before in- 
 flicting capital punishment for homicide, the murderous 
 intent, the malice aforethought, of the perpetrator must be 
 established. The rule of individual responsibility thus laid 
 down, swept away all laws based on the contrary principle. 
 Nothing was, however, left to inference. It was set down 
 in plain and unmistakable words. Hence the declaration : 
 
 Fathers shall not be put to death for children, nor 
 children be put to death for their fathers. For his own 
 crime only can a man be put to death (Deut. 14. 16 ; 
 2 Kings 14. 6 ; 2 Chron. 25. 4). 
 
 Ezekiel, too, incidentally refers to the subject. He is 
 
Io6 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 addressing his fellow exiles in Babylonia (c. 590 B.C.). 
 He finds that their patriotic spirit has been weakened, 
 and that they are settling down to the belief that the 
 nation will never be restored to its home. In short, they 
 are comfortable and quite content to remain in the new 
 land. Verbally, however, they declare the Exile a calamity, 
 and invent reasons why they are so severely punished. It 
 is the fault of their ancestors, who, while they ruled the 
 land of Israel, failed in duty to JHVH. It is this insincere 
 casuistry which Ezekiel is belabouring. He reproaches 
 them with applying to their circumstances a heartless and 
 untrue popular saying : The fathers have eaten sour grapes, 
 and the children's teeth are set on edge. He intimates 
 that they are absorbing alien ideas and setting them higher 
 than the wisdom of their ancestors ; that they are quoting 
 alien proverbs, and wrathfully exclaims: What mean ye, 
 that ye use this proverb concerning the land of Israel? 
 And then he delivers JHVH'S message, that every indivi- 
 dual soul is the Lord's, and goes on with a subtle satire on 
 Babylonian legal conceptions, which are at the bottom of 
 the objectionable proverb : The man that is guilty shall 
 be put to death. If a man be innocent and do what is 
 lawful and right, he is innocent (saddik) and shall live, 
 saith JHVH. If his son violates every law and right, he 
 shall be put to death ; upon him is the blood-guilt {damaw 
 bo). If this wicked son beget a good son, who does what 
 is lawful and right, he shall not be put to death for his 
 father's crime. He shall live. It is the guilty father who 
 must die for his own crimes. Turning on bis audience, 
 he tells them that their flippant use of the proverb, in 
 effect, means that the son should be punished for his 
 father's crime, whereas every man is answerable for himself. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 107 
 
 And in his peroration he urges them to make for them- 
 selves a new heart and a new spirit, and Israel will revive 
 (Ezek. 18. 1-32). 
 
 It was the strong assimilative bent of the Babylonian 
 Golah which he deplored and was chastising, and in doing 
 so he brought home to them the inferiority of Babylonian 
 justice as compared with Hebrew justice. That he had in 
 mind certain provisions of the Code of Hammurabi is 
 scarcely to be doubted (Lecture I, Sees. 116, 210, and 230 
 of that code). 
 
 It was Zionism which Ezekiel was preaching, to rather 
 dull ears, as it seemed to him. 
 
 The nations (goyim) shall know that I am JHVH, and 
 I will take you from among their midst, will gather you 
 out of all lands, and will restore you to your own land 
 {^6. 23, 24). 
 
 And the climax of his optimistic eloquence on this 
 theme was reached in his 37th chapter, that wonderful 
 description of the reanimation of the scattered dry bones 
 into a glowing and glorious organism ('^j. 1-14). 
 
 Perhaps the most important and far-reaching of the 
 secondary conflicts between Canaanite law and Hebrew 
 law, arose over the question of the killing of a slave. First- 
 hand knowledge of the former we have none. There is, 
 however, the Hammurabi Code, which at least gives us 
 information as to the state of west-Asiatic law a thousand 
 years before the Hebrew conquest of Canaan, and the 
 influence of which must have been appreciable in Palestine. 
 
 According to it, there were at least three contingencies 
 to be considered. The slave might have been killed by 
 a freeman other than his master, by a slave or by the 
 master himself 
 
Io8 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 The whole tenor of the Code shows that the resolutions 
 were as follows. The freeman who killed another man's 
 slave had to furnish another in his stead or pay his value, 
 to wit, one-third of a mina of silver (Sees. ] i6, 219, 231, 252). 
 This appears to have been the money value of a slave 
 male or female (Sees. 116, 214). 
 
 If a slave killed another man's slave, there is nothing 
 in the Code to make his master answerable, in money or 
 otherwise. Nor is there any indication that the slave 
 was punished, except perhaps by the loss of his ear or his 
 ears. The Code had great regard for property, and slaves 
 were property. The only punishment that could be inflicted 
 on them, without materially reducing their working-power 
 and consequent value, was cutting off their ears. Accord- 
 ingly, we learn that if he have struck the cheek of a freedman 
 (Sec. 205), or have repudiated his master (Sec. 282), in cither 
 case he loses his ear. That the fear of abating his value con- 
 trolled the policy of the statute, appears from the fact that 
 where an assault by a freeman is punishable by mutilation, 
 it is the offending hands that are cut off (Sees. 195,218, 226), 
 and where a freeman has spoken that which is criminal, it 
 is his guilty tongue that is cut out (Sec. 192). 
 
 As the Code does not treat of homicide, it throws no 
 direct light on the question of what would happen to the 
 master if he killed his slave. The general principle, how- 
 ever, is clear, that the slave is the mere chattel of the master. 
 If any one kills or maims him, he must pay the master, 
 who, according to the law, is the only one that suffers legal 
 injury (Sees. 116, 219, 231, 252, 199, 213, 220, 232). 
 
 Another noticeable fact is that while assaults without 
 evil consequences are punished if committed on gentlemen 
 or freedmen (Sees. 202, 203, 204), there is nothing said about 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 109 
 
 an assault on a slave, evidently on the principle that if his 
 value has not been impaired, his master has suffered no 
 injury, and he himself is legally incapable to sustain legal 
 injury, injuria. 
 
 We m,ay fairly conclude that according to the Ham- 
 murabi Code, if a man killed his slave it was his own 
 concern purely. He was the only loser. 
 
 Whether the Canaanite law of 3 000 B.C. was like the 
 Hammurabi Code is impossible to know, but that it had 
 points of resemblance to it may fairly be inferred from the 
 attitude of the Hebrew law on the subject. 
 
 Exod. 21. 20, 21, 26, 27, 32 is an important little slave- 
 code. It declares as a principle that the slave is the 
 master's property (kaspo hu) (21. 21), and then proceeds to 
 enact exceptions which destroy the rule. 
 They are as follows : 
 Exod. 21. 20. If a man smite his male slave {'ebed) or 
 his female slave (amah) with a rod (shebet) and 
 death is produced under his hand, nakom yinnakem 
 (Authorized Version: he shall be surely punished). 
 Exod. 21. 21. Notwithstanding if he continue a day or 
 two (yom yomayim), lo yitkkam (Authorized Ver- 
 sion : he shall not be punished), for he is his money 
 {ki kaspo hu). 
 Exod. 21. 26. And if a man smite the eye of his male 
 slave {^ebed) or the eye of his female slave (amah) 
 that it be destroyed, he must free him. 
 Exod. 21. 27. And if he smite out the tooth of his male 
 slave ('ebed) or the tooth of his female slave (amah), 
 he must free him. 
 Exod. 21. 32. If a goring ox push (to death) a male 
 slave i^ebed) or a female slave (amah), the owner of 
 
no THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 the OX shall pay unto the owner of the slave thirty- 
 shekels of silver, and the ox shall be stoned (to death). 
 
 The significance of this. Code is that the slave is recog- 
 nized as a member of society, and certain acts injurious to 
 him are declared to be crimes against the state and punish- 
 able by it. If he be maimed by the master so that he 
 loses an eye or a tooth, the state frees him. If he be mur- 
 dered by the master, there is nothing to exempt the latter 
 from the operation of the general law, which punishes that 
 crime with death. If, however, he die under his master's 
 hand in consequence of the latter's whipping, it is not 
 murder punishable by death, but it is a crime, and the state 
 inflicts a punishment, nakoni yinjtakein, whose nature we 
 shall discuss in the next lecture. If, however, he do not 
 die till the day after the whipping, there is no punishment. 
 
 If the slave be murdered by another, the latter, whatever 
 be his station, is undoubtedly guilty of a capital offence. 
 
 If, however, he be killed by a goring ox, under the 
 circumstances, which in the case of a freeman's death would 
 entail the payment of vindictive damages {kofer^ ivergild), 
 the owner of the ox merely pays the owner of the slave 
 thirty silver shekels and the ox is stoned. 
 
 When we consider the provisions of this little slave-code 
 in the light of all the authorities, there is much material for 
 reflection. When the Hebrews acquired the land of Canaan 
 they found slavery in existence, and were unable to abolish 
 it. That this failure was a severe blow to the Hebrew 
 authorities the whole literature attests. Upon every occa- 
 sion it is declared that escape from Egyptian slavery was 
 the beginning of JHVH's kingdom in Canaan, and that 
 freedom is the foundation of JHVH's commonwealth. 
 
 Remember this day in which ye came out from 
 
THE ANCIENT HEBREW LAW OF HOMICIDE III 
 
 Egypt, out of the house of slavery {bet ^abadim) 
 (Exod. 13. 3, 14 ; 20, 2 ; Deut. 5. 6). 
 
 I am JHVH, your Elohim, who brought you forth 
 out of the land of Egypt that ye should not be their 
 slaves (abadim)^ and I have broken the bonds of your 
 yoke and made you go upright (Lev. 26. 13). 
 
 Thou shalt say unto thy son : We were Pharaoh's 
 slaves i^abadim) in Egypt, and JHVH brought us out 
 of Egypt with a mighty hand (Deut. 6. 21 ; 7. 8). 
 
 Lest thine heart be lifted up, and thou forget 
 JHVH, thy Elohiin^ who brought thee forth out of 
 the land of Egypt, from the house of slavery {bet 
 'abadim) (Deut. 8. 14; 13. 6 (5); 13. 11 (10)). 
 
 I brought thee up out of the land of Egypt and 
 redeemed thee out of the house of slavery (bet ^abadim) 
 (Micah 6. 4). 
 
 I made a covenant with your fathers in the day 
 that I brought them forth out of the land of Egypt, 
 out of the house of slavery {bet ^abadim), as follows : 
 At the end of seven years let ye go every man his 
 brother a Hebrew, who hath been sold unto ye. And 
 one who hath served you six years send him out free 
 (at the end of the six years) (Jer. 34. 13, 14). 
 
 Ye have not hearkened unto me in proclaiming 
 liberty {deror) every one to his brother and every one 
 to his neighbour (Jer. 34. 17). 
 
 Proclaim liberty {deroi-) throughout all the land 
 
 unto all the inhabitants thereof (Lev. 25. 10). 
 
 Efforts to abolish slavery began at an early day. The 
 
 first step was to destroy the master's absolute power over 
 
 the life of the slave, and to convert perpetual slavery into 
 
 serfdom for a limited period (six years) (21. 2). At this 
 
112 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 point the opposition was too great, and the federal govern- 
 ment had to yield its principle of the equality of the ger. 
 The latter was not included in the serfdom statute. Even 
 in its modified form, the emancipation measure was not 
 completely successful. The masters were powerful enough 
 to compel the government to permit the perpetual slavery 
 of the Hebrew ezraJi by the device of a voluntary contract. 
 A form of procedure was invented (21. 5, 6), by which the 
 policy of the state was overcome. Such a law would have 
 been impossible if the government had felt itself able to 
 resist. The ancient Hebrew jurists saw, just as clearly as 
 do we, that fundamental state policies ought not to become 
 the plaything of the greedy and the ambitious, under any 
 circumstances, and that their nullification by private indi- 
 viduals, whether under the name of contract or otherwise, 
 is inconsistent with the state's sovereignty. Nevertheless, 
 they yielded, because no other course was open to them. 
 
 Notwithstanding these drawbacks, the advance made 
 inaugurated an era of human progress. 
 
 One who kidnapped a man to enslave him, suffered 
 death (Exod. 21. 16). Hammurabi's Code had a similar 
 provision for the protection of freemen (Sec. 14), but its 
 fanatical enthusiasm for slavery was displayed by de- 
 nouncing the death penalty against one who attempted to 
 free a slave (Sees. 15, 16, 19). 
 
 The important point, however, was that for the first 
 time the state made the slave's right to life and limb its 
 own concern. That even in this it had to make concessions 
 is true, but with all its incompleteness, it was the foundation 
 of a new world for the very poor. The lordly classes 
 learned that it was not at their will that the underworld 
 enjoyed life, nor was it within their province to destroy it. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE II3 
 
 The terms nefesh, ish, adam, red (man, neighbour) took on 
 a new meaning (Gen. 9 56; Exod. 21. 12; Lev. 24. 17, 
 21 ; Num. '>^^. 30 ; Deut. 19. 11; Josh. 20. 3). A slave was 
 at last a man, a ben-adam. 
 
 In the light of this advance, the halting features of the 
 statute are not as important as at first they seem. 
 
 The 20th and 21st verses, which define the crime of 
 a master whose slave dies in consequence of his whipping 
 as less than murder, are in harmony with the general law 
 that without malice aforethought there cannot be murder. 
 
 In the case put there is everything to exclude the idea 
 of malice. On the contrary, the master is acting according 
 to his right and, in the thought of that day, according to 
 his duty. It is not the case of a wanton assault ; it is a 
 case of lawful whipping, not with anything that caprice 
 or anger may dictate, but with the lawful instrument in 
 general use for that purpose, the rod [shebet). If it were 
 any other weapon, the master would no longer have the 
 benefit of this provision, but would come under the general 
 law regulating homicide (Num. '>,^, 16, 17, 18). 
 
 It is true that whipping with the shebet sometimes 
 resulted in death, but it was permitted by law, and regula- 
 tions concerning it were enacted (Deut. 25. 2, 3 ; 2 Sam. 
 7. 14). No danger was apprehended from it. * If thou 
 beatest him with the shebet^ he will not die' (Prov. 23. 13). 
 Parents were admonished to use it in correcting the faults 
 of their children (Prov. 13. 24 ; 22. 15 ; 23. 13 ; 29. 15). It 
 was therefore the master's usual and proper instrument for 
 disciplining the slave. 
 
 In view of the master's pecuniary interest in the life 
 and work of his slave, an intent to disable or kill him could 
 not fairly be presumed. If, therefore, the slave died, the 
 s. I 
 
114 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 reasonable presumption was to ascribe the death to his 
 constitutional weakness. And it is this presumption which 
 is embodied in the 2Tst verse, that if the slave do not die 
 on the day of the whipping, the master goes free. But if 
 he die on the day of the whipping, this presumption is 
 rebutted and overcome, and the master must suffer his 
 punishment. 
 
 The effect of this law was to compel the master to 
 remember that in administering punishment, he was in 
 a sense exercising a public function, and that the day for 
 considering it his private affair was over. Just as Deut. 
 25. 2, 3 prescribed moderation in whipping to courts and 
 their officers, so the statute imposed it on masters. 
 
 It is certain that this law did not abolish slavery, but 
 it so ameliorated its features that its gradual disappearance 
 might reasonably be hoped for. That these hopes were 
 never realized to the full, it is needless to say. Every 
 advance of mankind begets a desire for further improvement. 
 This is the immutable law of progress. 
 
 When slavery had largely disappeared, economic 
 equality did not result. The freed slaves doubtless fell 
 into the ranks of the sekirim^ the dallim^ and the ehyonim 
 of later ages, who, with their great spokesmen, the writing 
 prophets, agitated for the betterment of their lot. 
 
 There remains for consideration the meaning of the 
 term nakom yinnakem^ which is the punishment imposed 
 by the law (Exod. 21. 20) on the master whose slave dies 
 during a whipping or afterwards on the same day. This 
 involves a consideration of Hebrew modes of punishment 
 for crimes, and may well be deferred to the next — the last 
 lecture of this series. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE II5 
 
 V 
 
 The notions of punishment, retaliation, and revenge are 
 nearly allied. Revenge is the primitive and unregulated 
 impulse to hurt one who has inflicted an injury. Retalia- 
 tion is revenge modified by a sense of justice and due 
 proportion. It operates in two ways. Either it inflicts 
 upon the wrong-doer, as nearly as may be, the kind and 
 quantity of harm he has done, or it ascertains the particular 
 portion of his body which has been the instrument of the 
 wrong, and deprives him of it by mutilation. Legal 
 punishment, while it has as basic element the idea under- 
 lying the other two, is essentially different in this, that 
 while they keep in mind a certain personal satisfaction to 
 the injured party, it regards nothing but the welfare of the 
 whole community. 
 
 Revenge, as a general rule of conduct, necessarily ends 
 when society becomes reasonably organized. It is then 
 that retaliation, the lex talionis, is introduced. The state 
 is not yet exercising all of its proper functions, but leaves 
 some of them to be administered by constituent sub- 
 divisions, whether they be families, clans, tribes, or guilds. 
 
 In doing this it is not neglecting its duty. It has 
 simply not become conscious of it. Early states are all 
 politico-ecclesiastical, that is, they have a civil and eccle- 
 siastical government, however rudimentary, and these 
 constitute the ruling power. By the natural law of self- 
 defence, they resist aggression directed against these 
 functions. Hence it is that the acts which early states 
 recognized as crimes or offences against the commonwealth 
 are those which are of a public nature, a kind of treason 
 against church or state, and they are generally viewed as 
 worthy of death. 
 
 I a 
 
ir6 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 Offences against private individuals are, at this stage, 
 looked upon as trespasses, mere civil injuries, with which 
 the community as a whole has no other concern than to 
 preserve the peace, so that the safety of the state may 
 not be endangered. To this end it establishes tribunals 
 which arbitrate between disputants and determine what 
 satisfaction the one shall give the other. This view is so 
 fundamental that even now states do not otherwise 
 interfere between individuals in the great mass of trans- 
 actions and disputes. 
 
 The time comes, however, when states recognize that 
 there are some wrongs inflicted on private individuals 
 which, if not vigorously checked, indirectly sap the foun- 
 dations of the state. These are then treated as crimes 
 in analogy to those acts which are direct assaults on the 
 state. 
 
 Of all the trespasses thus advanced to the degree of 
 crime, the most important is homicide. The advance, 
 however, is not made at one leap ; it goes by stages. 
 While the retaliatory state subsists, the individual is never 
 compelled to stand alone. His family, clan, tribe, or 
 guild constitutes a kind of corporation, which assumes the 
 duty of guarding or avenging the lives of its members. 
 Of such corporations there may be many in a state. If 
 a member of one of them kills a member of another, 
 the latter retaliates in kind. There is as yet no sufficient 
 development of comity between these constituent bodies 
 to provide for arbitration, for judicial investigation, and 
 hence the rude justice of the lex talionis is established. 
 
 If, however, the slayer and the slain are both members 
 of the same subdivision, the rule does not apply. No 
 organization could grow or achieve permanence if it 
 
THE ANCIENT HEBREW LAW OF HOMICIDE II7 
 
 invariably supplemented the killing of one of its members 
 by the destruction of another in a continuing series. A 
 new interest, the communal, intei-venes to regulate private 
 feuds within the organization. Hence arises legal punish- 
 ment to replace the lex talionis. 
 
 In a state in this stage of organization, both systems co- 
 exist, a rudimentary kind of legal punishment for offences 
 within the subdivision, retaliation for those without. 
 
 The superiority of the system which bases punishment 
 on communal policy over that of mere retaliation, becomes 
 apparent by degrees. In time it is fully realized, and then 
 the state withdraws from subordinate organizations the 
 function of dealing with crime and itself assumes it, to 
 the exclusion of all other authority. Then it is that a 
 state may be said to be fully organized. 
 
 This form of opinion arises when a country is sub- 
 stantially consolidated, when its inter-clan feuds have been 
 practically abolished, when individual citizens feel them- 
 selves in direct and intimate relation with the state, and 
 the state becomes conscious that these citizens are its true 
 and ultimate constituents. 
 
 The national mission of keeping the peace between its 
 constituent tribes or clans has been accomplished, and in 
 its place comes the national duty of keeping the peace 
 between its individual citizens. The function of preventing 
 the decimation of one clan by another is replaced by that 
 of preventing one man from killing another. Individual 
 responsibility being established, the mild internal homicide 
 law, which inter-clan hostility created, must be modified 
 so that wilful murder shall be inexorably punished by 
 death, while less guilty kinds of homicide shall not be 
 condoned by mere money payments. 
 
Il8 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 The Hammurabi Code shows us Babylonia in the 
 retah'ation stage, from which it is scarcely beginning to 
 emerge. It has not yet made homicide the affair of the 
 state. Evidently the lex ialionis is in full force between 
 the several constituent bodies of the state. As regards 
 minor offences, it has numerous provisions for inflicting on 
 the perpetrator of a personal injury, the same kind of hurt, 
 and has many others for mutilation, by cutting out or 
 cutting off the perpetrator's offending member, the eye 
 for evil looks (Sec. 193), the tongue for evil speech 
 (Sec. 192), the hands for evil blows (Sec. 195), the breasts 
 for a nurse's wrong-doing (Sec. 194), and so on. 
 
 It has been many times said, and is constantly repeated, 
 that the lex talionis is the law of the Torah. 
 
 When it is remembered that the Hebrew law provides 
 for a careful trial of the accused, and declares that malice 
 aforethought must be ascertained or the offence is not 
 capital, it is scarcely necessary to repeat that alongside of 
 this law there could not be recognized another which 
 ignores all these points and dooms to death the man who 
 has just escaped the death sentence. The notion that two 
 systems of law so contrary to each other can be applicable 
 in the same case, in the same place, at the same time, 
 is too wild for serious consideration. Yet there is a 
 general opinion that 'the Avenger of Blood' had but to 
 wait outside of the court room until the tribunal had 
 acquitted the prisoner, and that then he lawfully killed 
 him, and that the tribunal acquiesced in this disposition 
 of the case. 
 
 It is interesting to trace the history of this widely- 
 diffused error. 
 
 There seems to have been in pre-Hebraic times a maxim 
 
THE ANCIENT HEBREW LAW OF HOMICIDE II9 
 
 professing to sum up in popular speech the character and 
 effect of the law of retaliation. It survives in the Pentateuch 
 in three versions, each somewhat varying from the others. 
 Its origin was probably in the remote past, when it may 
 have been in substantial accord with the law of retaliation 
 as then practised. That it was older than the Hammurabi 
 Code is plain. The latter had already advanced to the 
 point that between ordinary citizens it did not demand 
 an eye for an eye, or a tooth for a tooth, but was satisfied 
 with a mina of silver for an eye and a third of a mina of 
 silver for a tooth. Changes in the law, however sub- 
 stantial, do not seem to affect the life of such maxims. 
 Men go on repeating them, unconsciously converting the 
 literal into metaphorical meaning, so as to avoid doing 
 violence to their actual opinions. 
 
 Of this truth, the maxim under consideration is a 
 striking illustration. In order that this may be the better 
 understood, we must look not only at the various texts 
 of the maxim, but at the context in which they are em- 
 bedded. These will show the circumstances under which 
 it was cited, and the purpose of citing it. 
 
 The first of the versions is in Exodus, chapter 21. 
 Here are text and context : 
 
 Exod. 21. 22. If men strive and hurt a woman with 
 child, so that her fruit depart from her, and yet no 
 mischief follows, he shall be surely punished according as 
 the woman's husband will lay upon him ; and he shall 
 pay as the judges determine. 
 
 21. 23. And if any mischief follow, then thou shalt 
 give life for life {nefesh tahat nefesh), 
 
 21. 24. Eye for eye, tooth for tooth, hand for hand, 
 foot for foot. 
 
I20 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 21. 25. Burning for burning, wound for wound, stripe 
 for stripe. 
 
 The Deuteronomy version is contained in the following : 
 
 Deut. 19. 16-18 provides for the trial of a witness on 
 the charge of perjury in a trial for the capital offence of 
 sarah (Hebrew Polity^ pp. 51-61). 
 
 19. 19. (If convicted) then shall ye do unto him, as he 
 had thought to have done unto his brother ; so shalt thou 
 put the evil away from among you. 
 
 19. 20. And the rest will hear and fear and will not 
 henceforth commit such evil among you. 
 
 19. 21. Have no pity: Life for life {iiefesh be-nefesh)^ 
 eye for eye, tooth for tooth, hand for hand, foot for foot. 
 
 The Leviticus version is part of a peculiar text, con- 
 cerning which something was said at the end of the third 
 lecture. It is as follows : 
 
 Lev. 24. 10-16 is the report of a trial for blaspheming 
 the Skeniy the decision and the law promulgated thereupon, 
 that one guilty of that offence must be stoned to death 
 by the ^Edah^ and that the ger is just as amenable to this 
 law as the ezrah, 
 
 24. 17. He that killeth any man shall be put to death. 
 
 24. 18. He that killeth a beast shall make it good 
 {yeshallemennah)^ beast for beast (nefesh tahat nefesh). 
 
 24. 19. If a man cause a blemish {mum) in his neighbour, 
 as he hath done, so shall it be done to him. 
 
 24. 20. Breach for breach, eye for eye, tooth for tooth : 
 as he hath caused a blemish {mum) in a man so shall it 
 be done to him. 
 
 24. 21. He that killeth a beast shall make it good 
 iyeshallemennah) and he that killeth a man shall be put 
 to death. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 121 
 
 24. 32. Ye shall have one mishpat for ger as for ezrah. 
 I am JHVH your God. 
 
 24. 23. And Moses spake to the Bne-Israel that they 
 should bring forth him that cursed out of the camp and 
 stone him with stones. And the Bne- Israel did as JHVH 
 commanded Moses. 
 
 The maxim refers only to homicide and to maiming. 
 We know the Hebrew law of both. Homicide is either 
 murder, which is a capital offence, or it is manslaughter, 
 which is punishable by a form of imprisonment. Maiming 
 is a form of assault and battery. This offence also has two 
 degrees. It is either simple assault and battery, which 
 is punishable by compensatory damages (Exod. 21. 18, 19), 
 or it is aggravated assault and battery (of which maiming 
 is one kind), which is punishable by vindictive damages to 
 be assessed by the court {pelilim) (Exod. 21. 22). 
 
 The maxim in any of its forms contradicts the Hebrew 
 law of homicide and of assault and battery. It also con- 
 tradicts the pre-Hebraic Canaanite law of homicide, and 
 probably of assault and battery, because it excludes kofer, 
 or wergild, which was a recognized institution, against 
 which the great law reform waged war. 
 
 That it was a mere forensic statement appended to 
 the enunciation of a law, with which it had some fancied 
 relation, seems clear enough. The law of Deuteronomy 19 
 proves it. The offence of perjury in a trial for the capital 
 crime of sarah is made capital. The only punishment 
 that could be inflicted was death. It was a new capital 
 crime, and the promulgation of the law itself was followed 
 by the argumentative use of this popular maxim. There 
 could be no question of eye or tooth or hand or foot, and 
 yet we have the whole catalogue. The object is plain. 
 
122 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 It is as if the herald who proclaimed the statute had 
 followed up his announcement by reminding them that 
 the perjured witness was only getting his deserts according 
 to the old maxim. 
 
 Its use in the Exodus statute is not for any other 
 purpose. I have already indicated that the text is de- 
 fective. It provides first for the punishment of simple 
 assault and battery, without serious consequences, by com- 
 pelling the assailant to pay for his victim's cure and for 
 his loss of time (Exod. 21. 18, 19). It then provides for 
 the corporal punishment of an aggravated assault on a 
 slave resulting in death (Exod. 21. 20). Finally it punishes 
 an aggravated assault on a woman which produces the 
 death of an unborn child. The penalty is the payment 
 of vindictive damages, and there the matter ends. That 
 if the woman too should die, corporal punishment would 
 follow, as in cases of manslaughter, is highly probable. 
 By corporal punishment I mean either scourging or im- 
 prisonment. 
 
 The texts, however, are confused, and are made to 
 say that the death of the unborn child does not change 
 the character of the offence from simple assault to aggra- 
 vated assault, because no ason (mischief, harm) results. 
 
 In the teeth of this saying there is the provision for 
 vindictive damages, which is itself the sign that the law 
 considers the injury serious. Then there is, too, the law 
 that manslaughter, the actual killing of a man in hot 
 blood or by casualty, is not to be punished with death. 
 
 Keeping this in mind, the idea that a man could be 
 capitally punished who hurt a woman without malice afore- 
 thought and without intent even to strike her, is simply 
 inadmissible. One may well suspect that some words 
 
THE ANCIENT HEBREW LAW OF HOMICIDE I23 
 
 are missing from verse 23, which described an offence of 
 great gravity, and also provided a severe specific punish- 
 ment for it, and that the maxim was then invoked just as 
 in Deuteronomy. But even if this very probable hypo- 
 thesis is untrue, the maxim may have been quoted to 
 point a case of damages merely. 
 
 This is exactly what has happened in the Leviticus 
 text. He that killeth a beast shall make it good (shall 
 pay for it) (yeshallemennaJi) nefesh tahat nefesh. The 
 Authorized Version translates this leading phrase of the 
 maxim beast for beast, instead of life for life. And the 
 translation is a correct rendering of the meaning. It has, 
 however, not been perceived that the text, after it announces 
 a liability to pay money damages, quotes this very maxim 
 by way of support. We have, in effect, a definition which 
 declares that making good by a money payment a loss 
 inflicted, is an instance of the application of the old maxim 
 7iefesh tahat nefesh (life for life). And this Leviticus text 
 is the only one of the three which makes maiming {mum) 
 a separate form of aggravated assault and battery which 
 is to be punished in kind : ' As he hath done, so shall it be 
 done to him ' (Lev. 24. 19). And then follows the rest of the 
 maxim : breach for breach, eye for eye, tooth for tooth. 
 
 That this has no other meaning than that money 
 damages adequate to punish for the injury must be 
 assessed against the aggressor, is certainly inferable from 
 the apposition of yeshallememiah with nefesh tahat nefesh. 
 So read we have simply the same law as in Exodus 21. 22, 
 that in a case of aggravated assault and battery mere 
 compensation will not suffice, but the judges are to assess 
 vindictive damages against the aggressor proportioned to 
 the gravity of the injury. 
 
124 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 There is another thing that must not be overlooked. 
 The maxim in its fullest form is found in the Exodus 
 text, and follows hard on a piece of old Canaanite law 
 (Exod. 21. 23-5). The Hebrew law of assault and battery 
 is uniform, that in no event, whatever the result, can the 
 penalty be death where the intent to murder is lacking. 
 Moreover, the cardinal principle of Hebrew law is that every- 
 body is equal before the law. The Code of Hammurabi, 
 however, devotes six sections to the case of assault on 
 a pregnant woman (Sees. 209-14 ). Five of these provide 
 for the payment of compensation only, the sixth (Sec. 310) 
 provides that if the victim be a gentleman's daughter, the 
 assailant's daughter shall be put to death. We have 
 already, in our first lecture, intimated that in later times 
 this provision must have been interpreted, even in Babylonia 
 and Assyria, to mean the payment of punitive damages, in 
 addition to compensation. It is an offshoot of this piece 
 of Babylonian woman-law which has somehow been pre- 
 served in our text, though it is in glaring contradiction to 
 every principle of Hebrew law. The reasonable explanation 
 is that among the old documents which went into the com- 
 pilation of our books, odd pieces of zikne ha-ir law, having 
 in them Canaanite admixtures, crept in and remained un- 
 detected, because they had become obsolete in practice. 
 
 There is just one other similar piece of Canaanite 
 woman-law with retaliatory features. It is contained in 
 Deuteronomy 25. 11, 12, and contrary to all Hebrew law 
 and practice, prescribes mutilation, the cutting off of the 
 offending hand, as punishment. It is, however, quite in 
 line with the Hammurabi Code, which prescribed mutila- 
 tion in no less than twelve sections (Sees. 192, 193, 194, 
 195. 196, 197, 200, 205, 218, 226, 253, and 282). 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 125 
 
 When we find obsolete Canaan ite laws thus recorded, 
 we need not be surprised to meet a popular Canaanite 
 legal maxim, which everybody quoted at all times, with 
 no definite meaning, but merely by way of illustration. 
 The fullest version of the maxim accompanies the gravid 
 woman's law of Exodus. In Leviticus the maxim is cut 
 in two. Its first and most significant member, nefesh 
 tahat nefesh, frankly means a money payment, and there 
 is no good reason for attributing to the less significant 
 phrases of the maxim a higher value than to its chief 
 portion. In Deuteronomy its use as a mere illustration 
 is palpably plain. 
 
 In determining what punishments were imposed by 
 Hebrew law, we ought not to overlook Ezra's views on 
 the subject. He was a Kohen and a thorough adept in 
 the law, * a ready scribe in the law of Moses '. He was 
 a leader of his people and had very definite ideas on the 
 subject of reconstructing the Jewish state in its pristine 
 glory. He must have been a person of eminence, or 
 otherwise he could not have obtained from Artaxerxes the 
 liberal charter which authorized him practically to rule 
 a new state which he was to found on the site of the old 
 Judea of his fathers, there to administer the Torah of 
 JHVH and to enforce its hok and mishpat. Moreover, 
 in the year 450 B.C., there were better means of knowing 
 and understanding the old law than are accessible to us. 
 That the terms of the charter originated with Ezra, can 
 scarcely be doubted. The document is in Ezra 7. 12-26. 
 These are the words : And thou Ezra, according to the 
 hokmat elahak which is in thy hands, set judges and 
 dayyanin to judge all the people beyond the river for all 
 such as know the laws of thy God, and as to those that 
 
126 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 know them not, teach them. And whoever will not do 
 the law of thy God and the law of the King, let judgement 
 (dmah) be executed speedily upon him, whether for death 
 {le-mot), for banishment (lishrosht)^ for amercement of 
 goods {laanash niksin) or for imprisonment (esurin). 
 
 The Authorized Version renders shaftin we-dayanin^ 
 magistrates and judges. There can be little doubt that the 
 author was translating shofetivi zve-shoterini (Deut. 16. 18), 
 and that therefore the rendering should be 'judges and 
 officers \ dayyan being the equivalent of shoter, who is the 
 official that executes the judgement of the court in the 
 manner of our sheriff. 
 
 The Ezra charter enumerates four kinds of punishment 
 for criminal offences. 
 
 The Torah knows of six : 
 
 Death: (Exod. 11. 12). 
 
 Karet: (Gen. 17. 14; Exod. 12. 15, 19; 30. ^^, 38; 
 31. 14, 15 ; Lev. 7. 20, 21, 25, 27; 17. 4, 9, 14; 18. 29; 
 19- 5-8> 13. 20 ; 20. 5, 17, 18 ; 32. 3 ; Num. 9. 13 ; 15. 30, 31 ; 
 19. 13, 20). 
 
 Amercement: (Exod. 21. 19). 
 
 Enslavement : (Exod. 22. 3). 
 
 Scourging: (Deut. 22. 18; 25. 2, 3 ; Lev. 19. 20). 
 
 Nakoni yinnakem : (Exod. 21. 20). 
 
 Two of these six (death and amercement), are plainly 
 specified in the Ezra charter ; two others (enslavement and 
 scourging ; a slave's punishment) had become obsolete 
 by the emancipation law, leaving for consideration only 
 Karet and nakom yinnakem^ which stand in the place of 
 Ezra's banishment and imprisonment. 
 
 That Karet in the early ages meant banishment, is 
 probable. The uncircumcised male (Gen. 17. 14) and 
 
THE ANCIENT HEBREW LAW OF HOMICIDE I27 
 
 the man who flouted the celebration of the Exodus 
 (Exod. 12. 15, 19; Num. 9. 13), were both to be cut off 
 from among their people. These, however, were grave 
 offences against national duty. The rite of circumcision 
 was, in effect, the admission to the citizenship of the 
 nation, while the Passover celebration was the symbol of 
 the nation's birth which every patriot profoundly revered. 
 That a man who failed in these respects was looked upon 
 as a traitor, is not to be wondered at. Exile was not 
 deemed too severe a punishment. 
 
 There are, however, many other cases calling for the 
 punishment of karet which could not possibly have been 
 punished by exile. Such cases are the following : eating 
 the flesh oishelamim offerings while unclean (Lev. 7. 20, 21) ; 
 eating the fat of a fire-offering (Lev. 7. 25) ; eating blood 
 (Lev. 7. 27; 17. 14); killing an ox, lamb, or goat in the 
 camp and not bringing it as a korban (Lev. 1 7. 4, 9) ; 
 compounding an imitation of the holy oil (Exod. 30. '^^'^ 
 or the holy perfume (Exod. 30. 38) ; eating of shelamin 
 offerings on the third day (Lev. 19. 5-8); committing 
 certain improprieties (Lev. 20. 18) ; eating of the kodashim 
 while unclean (Lev. 22. 3) ; failing to purify one's self when 
 unclean (Num. 19. 13, 20). 
 
 These are all trespasses which would be adequately 
 punished by temporary seclusion or excommunication. 
 To have banished from the land all persons guilty of 
 these ecclesiastical peccadilloes would have weakened the 
 kingdom. 
 
 That karet at any time meant the death-penalty is 
 highly improbable. Perhaps the strongest argument in 
 favour of the view that it did, may be derived from the 
 passages Exod. 31. 14, 15. In the former, one who works 
 
128 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 on the Sabbath incurs the penalty of karet ; in the latter, 
 the penalty is death. This, however, warrants no other 
 conclusion than that the latter provision is an amendment 
 of the former. Indeed, there is distinct evidence that the 
 law was changed in some such manner. In Num. 15. 3^-6 
 there is a reported case of a man who gathered sticks on 
 the Sabbath. The authorities seem to have been in doubt 
 whether the offence was punishable. The oracle decided 
 that the penalty must be death by stoning. 
 
 The conclusion would seem to be that the punishment 
 of exile for working on the Sabbath was deemed impolitic, 
 and that the death-penalty, which might be expected to 
 prove a more effective deterrent, was at an early date 
 substituted by way of amendment. 
 
 Karet may therefore be said to have two meanings, 
 an older and a newer one ; the former being exile, and the 
 latter a lighter penalty to be borne at home for a limited 
 period. 
 
 Ezra seems to have adopted the older karet, that is 
 exile, for his new commonwealth, calling it sheroshi (up- 
 rooting) in his Aramaic. 
 
 Ezra's esurin (imprisonment) has no parallel in the 
 older law, unless it be found in the nakoin yinnakem of 
 Exod. 21. 20. 
 
 These words are rendered by the Authorized Version ; 
 he shall be surely punished. No substantial objection can 
 be urged against the mere translation of the words. 
 Literal translations, however, are but slight helps to the 
 understanding of technical terms. And that the term in 
 question is technical, there is little room for doubt. It 
 will be remembered that chapter 21 of Exodus contains 
 a code of laws which prescribe specific punishments for 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 129 
 
 certain offences. For murder, death (21. 12); for smiting 
 a parent, death (21. 16); for cursing a parent, death (21. 17) ; 
 for injuring a man in a quarrel, compensation (21. 19) ; for 
 smiting a slave with a rod which produces death, nakom 
 yinnakem (21. 20) ; for producing miscarriage, punitive 
 damages i^anoshyeanesh) (21. 22). The penalties are all 
 specific, and there is no reason to doubt that nakom yinna- 
 kem is likewise specific. The only difficulty is to dis- 
 cover what it was. That it was something more than 
 punitive damages, is obvious. It must have been some- 
 thing affecting the person of the culprit with some severity. 
 The particular term is unique, there being no other in- 
 stance of its use. The root-word is, however, common, 
 and it always denotes punishment of a serious character. 
 
 In Judges (15. 7 and 16. 28) Samson uses it to mean 
 the slaughter of a multitude. In 2 Kings (9. 7) Elisha 
 uses it to charge Jehu with the duty of destroying the 
 whole house of Ahab. Jeremiah uses it to describe a day 
 of JHVH's signal punishment of enemies (46. 10 ; 50. 15 ; 
 51. '^6). By Ezekiel it is used in a similar sense (Ezek. 
 25. 15), as also in Esther (8. 13). 
 
 That it cannot mean death is apparent from two facts : 
 first, the offender did not intend to kill the man, and was 
 therefore guilty only of manslaughter, and second, the 
 same code uses the technical term mot yumat in the 
 several cases when the offence is capital. It is true that 
 the Talmud (Sanhedrin 52 b) construed it to mean ' death 
 by the sword \ Its argument, however, though ingenious, 
 falls before the two facts already stated. 
 
 Nor is it likely to mean banishment from the land, which 
 is nearly as severe as the death penalty, and is moreover 
 already provided for under the name of Sheroshi. The fact 
 S. K 
 
130 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 that a new crime was being created by law must not be 
 forgotten. Before this law the fact that the slave died 
 under his master's correction was no man's concern. In 
 the Code of Hammurabi the death of the slave rendered 
 the slayer liable to give the bereaved master another slave 
 in his stead. Other consequences there were none. If, 
 therefore, the master lost his slave by his own act, it was 
 his own money he was losing. This is good Babylonian 
 law, and it is one of the ironies of history that when the 
 Hebrew law fought this system, and won its first great 
 triumph over it, the record should be disfigured by the 
 intrusion into it of the Babylonian principle which it had 
 just overcome : ' The slave is but the master's money ' 
 (kaspo hu) (Exod. ^i, 21), It and the lex talionis maxim, 
 which follows hard upon it (21. i'>r^y ^^'^ both of them 
 good Canaanite law. They are^ however, in direct con- 
 tradiction of Hebrew law. 
 
 On the other hand, it was not to be expected that 
 extreme punishment should be inflicted for an act which 
 men had just begun to look upon as an offence. This 
 view would negative banishment as the punishment meant 
 by nakom yinnakem. 
 
 Scourging, on the other hand, was in ancient Israel 
 fit punishment only for children, slaves, and paupers, and 
 would not be thought of for men of good condition. Only 
 for one offence, and that an infamous one, was the punish- 
 ment imposed on a freeman (Deut. %%. 18). And to this 
 effect writes Josephus {Ant,^ Book 4, ch. 8, Sec. 21) : The 
 punishment of stripes is a most ignominious one for a 
 freeman. 
 
 It need not therefore be thought of in this connexion. 
 This leaves for consideration only the question of im- 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 131 
 
 prisonment. There is a very common belief that the 
 ancient Hebrews did not know deprivation of liberty as 
 a punishment for crime. Against the correctness of this 
 supposition there is a mass of evidence which has not been 
 sufficiently weighed. 
 
 Very significant is the fact that there are eight several 
 Hebrew words denoting prisons, and, moreover, two of 
 these words are used in varying forms : 
 
 1. ha-mattarah is used by Jeremiah (3^^. 2, 8, i:z ; 33. 11 ; 
 37.21; 38.6,13,^28; 39. 14, 15); and Nehemiah (3.25; 12.39). 
 
 2. Masger is used by Isaiah (24. 22 ; 42. 7) ; and by the 
 Psalmist (142. 8). 
 
 3. Bet ha-pekudot is used by Jeremiah (52. 11). 
 
 4. Bet ha-bor is used in Exodus (12. 29) ; and by 
 Jeremiah {'>,']. 16). 
 
 The variant form bor is used by Isaiah (24. 22) ; by 
 Jeremiah (38. 6, 7, 9, 10, 11, 13); and most significantly 
 in Proverbs (28. 17) : A man oppressed by blood-guilt 
 (dam-nefesk) will flee {yaims) to the bor ; let no man 
 stay him. 
 
 5. Mishmar is used in Genesis (40. 3, 4, 7; 41. 10; 
 42. 17, 19); in Leviticus (24. 12); in Numbers (1,5. 34) : 
 * And they put him in mishmar^ since it was not declared 
 what should be done to him.' In Proverbs (4. 23) : ' As 
 in any prison [mishmar) guard thy heart; for out of it 
 are the issues of life.' 
 
 6. Bet ha-sohar is used in Genesis (39. 20, 21, 22, 23 ; 
 40. 3, 5). 
 
 7. Bet ka-asirim (M.T. astirim) is used in Judges 
 (16. 21, 25). 
 
 The variant form bet ha-esur occurs in Jeremiah 
 {?il' 15), and the form bet ha-surim in Koheleth (4. 14). 
 
 K 2 
 
132 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 8. Betha-kele' occurs in i Kings 22. 27 ; 2 Chron. 18. 26 : 
 Put this man in prison (bet ha-kele') and feed him on 
 bread and water. And Jeremiah uses it (^"j, 15, 18). 
 
 The variant form bet ha-keli (M.T. bet ha-kehU) occurs 
 in Jeremiah 37. 4 ; 52. 31 ; while the form bet-kele' is used 
 in 2 Kings (17. 4 ; 25. 27), and in Isaiah (42. 7) : ^To open 
 blind eyes, to bring the prisoner (assir) from the masger, 
 the dwellers in darkness (yoskebe koshek) from the bet-kele\' 
 
 Besides these undoubted names for prison, the Au- 
 thorized Version gives prison-house as the rendering of 
 bet ha-mahpeket. King Asa being wroth with Hanani, 
 the seer (rdeh) put him into the bet ha-mahpeket (prison- 
 house) (2 Chron. 16. 10). 
 
 When Pashhur, the priest, was angered with Jeremiah 
 for his prophecies, he put him in the mahpeket by the upper 
 Benjamin-gate (Jer. 20. 2). A. V. here renders not ' prison', 
 but ' stocks \ 
 
 The word occurs but once more. Shemaiah, the 
 Nehelamite, who prophesied in Babylon in a sense con- 
 trary to Jeremiah's prophecies at Jerusalem, wrote to the 
 priest in the latter city to put Jeremiah in the mahpeket 
 and in the sinok (Jer. 29. 26), that being the proper place 
 for a meshiiggOL (madman) who prophesies. 
 
 This mode of branding a prophet whose utterances are 
 displeasing was not a new thing. Hosea (9. 7), reproaching 
 his age, charges them with calling the nabi a fool (ewil) 
 and the inspired man {ish ha-ruah) a madman {meshuggcL), 
 And even in our own day the same phenomenon occurs. 
 A statesman who advocates measures we do not like is 
 often called a paranoiac. 
 
 The fact is clear that the mahpeket is spoken of only 
 in connexion with prophets whose utterances are distaste- 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 133 
 
 ful to those in power, and who are by the latter branded 
 as madmen. The conclusion would seem to be that the 
 bet ha-mahpeket was a place for the detention of lunatics, 
 rather than a house of punishment for criminals. Exactly 
 what sinok means is doubtful. A.V. renders 'the stocks', 
 but as the word occurs but this once, we can be certain 
 only that it means some place or instrument of restraint. 
 
 The common notion that the ancients had no separate 
 institutions for the sick may be questionable. The obscure 
 text (2 Sam. 5. 6, 8), which describes the capture by David 
 of the fortress of Jebus, speaks of the Jebusites' defiant cry 
 to David that unless he could reach the sinnor and capture 
 the blind and the lame, he would never enter the place. 
 The sinnor was apparently built on the highest point of 
 what was afterwards the city of David, and the inference 
 is reasonable that it was a place where the blind and the 
 lame were kept. It may be that the sinnok of Jeremiah 
 and the minor of Samuel are not totally unrelated. 
 Whether the account was historically accurate or was 
 merely legendary by way of explaining the origin of the 
 later law that ' the blind and the lame shall not enter the 
 temple ' i^iwer u-piseah la yabo el-ha-bayit : % Sam. 5. 8 ; 
 cp. Lev. %\. 18), is a question. In any event, the narrative 
 seems to indicate familiarity with the idea of segregating 
 persons afflicted with certain infirmities. 
 
 There is probably still another name for prison, though 
 the translators have hitherto not recognized it. It is bet 
 ha-asnppim (1 Chron. 26. 16). The Authorized Version 
 takes asuppim for a man's name, while the Revised Version 
 renders ' the storehouse '. 
 
 Sufficient regard has not been paid to the instances 
 
134 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 in which asaph means * to imprison '. Joseph put his 
 brothers {zva-yeesoph) into mishmar for three days (Gen. 
 
 42. 17). 
 
 As prisoners are imprisoned, they will be imprisoned 
 in a dungeon, will be shut up in a jail {vue-ussephu asephah 
 assir ''al-bor^ we-suggeru ^al-masger) (Isa. 24. 22). 
 
 That there was in Jerusalem a house of detention 
 (which we would call a police station), to which persons 
 arrested for trivial offences were consigned, would appear 
 from certain passages in the Song of Songs, and this may 
 have been the puzzling bet ha-asuppim of i Chron. 26. 16. 
 When the lady of the song dreamed that she went forth 
 by night to look after her beloved, she found him not, 
 but encountered unsympathetic policemen on their beats 
 (shomerim ha-sobebim ba-ir)^ who arrested her {mesa'uni). 
 She was, however, soon released {kimat sheabarti mehem) 
 (Song of Songs 3. 3, 4). 
 
 The current translations do not say ' they arrested her ', 
 but give the rendering ' they found ' her, on the theory 
 that masa\ which usually means to find, does so in this 
 instance. The word also has the meanings to catch, to 
 arrest, to acquire, to take or receive. A burglar caught 
 in the act (Exod. 22. i (2)), and a thief caught after the 
 act, are both yimmase' (Exod. 22. 6, 7 (7, 8)). The men 
 who caught and jailed the Sabbath-breaker were moseim, 
 wa-yimseu (Num. 15. 32, 33). 
 
 The booty acquired in war is mascL (Num. 31. 50). 
 All that a man has acquired (his whole estate) is yimmase 
 (Deut. 21. 17). 
 
 Here are other instances : 
 
 If a man catch (yimsa) his enemy, will he let him go ? 
 (i Sam. 24. 19). 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 135 
 
 They caught {wayitnseu) an Egyptian and brought him 
 to David (i Sam. 30. 11). 
 
 Was Israel caught {nimsd) among thieves? (Jer. 48. 27). 
 
 I will surrender (mamst) them each unto his neighbour's 
 hand (Zech. 11. 6). 
 
 If the thief be caught {we-nimsa), he must pay seven- 
 fold (Prov. 6. 31). 
 
 And he saith : Do not lower him into the pit. I have 
 taken ransom {masa'ti kofer) (Job ^'^. 24). 
 
 In the Canticles, therefore, the lady dreams that the 
 police arrest her, but do not detain her long (3. 3, 4). In 
 her next dream, however, she is not so fortunate. The 
 policemen not only arrest her, but beat and wound her, 
 and give her in charge to the policemen of the wall (shomere 
 ha-.homot)^ who use her roughly, rending her dainty 
 veil or mantle (5. 7). One may well believe that the 
 policemen of the wall had a station to which the police- 
 men arresting persons whom they considered disorderly, 
 took their prisoners. At the station the prisoners were 
 of course examined, and any endeavour to avoid identifi- 
 cation by covering the head or face with veil or mantle, 
 would result in damage to the garment. 
 
 That the walls of cities were thoroughly policed, and 
 that they had houses built on them, is certain. 
 
 I have appointed shomerim upon thy walls, O Jerusalem, 
 who will not be inactive {lo yeheshu) by day or by night 
 (Isa. 62. 6). 
 
 When Rabshakeh shouted the menaces of Assyria to 
 the ministers of the king of Judah, the latter prayed him 
 to speak in the Aramaic tongue, so that those on the 
 wall would not understand. Rabshakeh, however, rudely 
 insisted on addressing his menacing words to the yoshehim 
 
136 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 on the wall, their purport showing that he looked upon 
 them, not as a rabble of idlers, but as having authority 
 to influence Hezekiah's actions (i Kings 18. 27 ; Isa. ^6. 12). 
 
 We may, therefore, fairly conclude that the wall of 
 Jerusalem had a police station to which the shonieriin 
 brought their prisoners, who were tried by the yoshebim 
 there sitting. Such police courts are not otherwise un- 
 known. There was such a court in one of the prisons 
 in the city itself, where the sale of certain land in Anathoth 
 to Jeremiah was duly acknowledged before the yoshebim 
 that sat in the prison court (Jer. 32. 12). 
 
 Whether the lady of the Canticles was or was not in 
 the police station of her dream-city, is, after all, of no 
 great importance. When we remember that there are 
 at least eight acknowledged names for prison in the 
 Hebrew language, it is no longer to be doubted that the 
 prison was an institution of which everybody had know- 
 ledge. Indeed, in the two capital cases for which there 
 was no precedent, and which puzzled Moses and the 
 ''Edah^ the accused were both imprisoned pending the 
 determination of the issue (Lev. 24. 12 ; Num. 15. 34). 
 
 Assuming, then, that imprisonment (deprivation of 
 liberty) was well known to the ancient Hebrews as a mode 
 of preliminary or final punishment, the question arises 
 whether the Exodus Code provides for its imposition. 
 That the loss of liberty was known to the Code would 
 appear from the provision (21. 13) for a makoin, to which 
 one guilty of manslaughter would go. This certainly 
 means that the defendant could not stay at home, that he 
 would have to go to an appointed place and live there. 
 
 This is not a bad definition of a state-prison, however 
 the details of its management may differ from those of 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 137 
 
 analogous modern institutions. That the separated city 
 of Deuteronomy and the 'ir miklat of Numbers, which 
 succeeded the makoin^ were prison-cities, we think has 
 been demonstrated. It is not, therefore, difficult to believe 
 that a person whose offence was an inferior kind of man- 
 slaughter, would, as a punishment, be deprived of his 
 liberty for a time. 
 
 The gdel ha-dam and the Vr miklat both ceased by 
 the time of Jehoshaphat. Shofetim and shoterim, federal 
 appointees, were placed in each canton (ir). If there had 
 been no prisons before, they became indispensable then. 
 The evidence adduced warrants the conclusion that they 
 were not a sudden invention. The tradition implied in 
 the multiple names for the institution, is perhaps better 
 evidence than a direct written statement would be. 
 
 In this connexion it is pertinent to quote once more 
 the Proverb (Prov. ij8. 1 7) : 
 
 A man oppressed by blood-guilt must go to prison. 
 Let no man stay him. 
 
 The translation here given is not that of the versions, 
 all of which fail to perceive that the word bor in the text 
 means prison, being used in that sense in Exodus (12. 29), 
 bylsaiah (24.22)5 and by Jeremiah (37.16; 38.6,7,9,10,11,13). 
 So read, it is a popular legal maxim, just as if we would 
 say : Never be bail for a murderer. Indeed, the Septuagint 
 comes very near to adopting this as the translation. 
 
 On the whole, it is probable that the man whose 
 slave died under his rod was punished by imprisonment, 
 and that this is what is meant by nakom yinnakem. 
 
 Before closing the investigation, a word should be said 
 about the passages in Genesis bearing on the subject of 
 homicide (Gen. 4. 8-16; 9. 5, 6). They are, as has been 
 
138 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 said, no part of the legal literature. Cain slays his brother, 
 perhaps in the course of a heated argument. So put, the 
 offence was, according to the law of Exodus and the rest, 
 mere manslaughter. The punishment decreed is that he 
 can no longer remain in the land where the offence was 
 committed. He must leave his home and live elsewhere. 
 The terrors of exile are greater than he can bear, and 
 JHVH sets a mark on him which will diminish its perils. 
 The sentence, however, is not modified. Cain left and 
 dwelt in the land of Nod to the east of Eden. 
 
 In God's instruction to Noah and his sons after the 
 Deluge, homicide is dwelt upon. He who kills a man 
 must answer for it. Even a beast must answer for the 
 blood of a man. And the whole community is responsible 
 for bloodshed {mi-yad ish ahiw edrosh et-nefesh ha-adam). 
 And then the general principle is laid down : Whoso 
 sheddeth man's blood (shofek dam ha-adam), by man shall 
 his blood be shed. 
 
 In all this there is nothing to run counter to the Hebrew 
 law of homicide as we have explained it. The words 
 shofek dam may be taken in either one of two senses. 
 They may refer to wilful murder, which must be punished 
 by death, or the principle announced may have no reference 
 whatever to human law. The seer, pondering on the 
 problems of the world, may reflect that bloodshed, whether 
 from malice or by misadventure, always brings misfortune 
 in its train. The Talmud has the same philosophy : With 
 what measure ye mete, so shall it be meted unto you 
 (Sotah 8 b). God's justice is measure for measure {middah 
 ke-neged middah) (Sanhed. 90 a). And Shakespeare more 
 than once utters a similar thought. In his Measure for 
 Measure he makes the Duke say : 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 139 
 
 ' The very mercy of the law cries out 
 Most audible, even from his proper tongue, 
 An Angelo for Claudio, death for death, 
 Haste still pays haste and leisure answers leisure, 
 Like doth quit like, and measure still for measure.* 
 {Measure for Measure^ Act 5, Scene 1.) 
 And in the third part of Henry VI (Act 2, Scene 6), the 
 Earl of Warwick speaks : 
 
 ' From off the gates of York fetch down the head, 
 Your father's head, which Clifford placed there. 
 Instead whereof, let this supply the room ; 
 Measure for measure must be answered.' 
 Whether the passages be legal or philosophical, or a 
 mixture of both, the law is always kept in view. That 
 a beast must answer with its life for the blood of man, 
 is the express provision of the statute (Exod. 31. ^^9, 32). 
 That the whole community incurs blood-guilt when one 
 man murders another, has, we think, been proved in the 
 second lecture. That the perpetrator himself must suffer 
 is a thing of course. 
 
 One fact should, however^ be kept in mind. Shofek 
 dam was rather a literary form than a legal term. Isaiah 
 so uses it in describing the general decadence of morals 
 (Isa. 59. 7) ; Jeremiah does the same (Jer. 7. 6 ; 22. 3, 17), 
 as does Joel (4. (3). 1 9). This use has even become proverbial 
 (Prov. I. 16; 6. 17). 
 
 We have now reached the end of our inquiry, and it 
 remains for us to give a brief summary of its results. 
 
 About 1280 B.C. Israel, under the leadership of Joshua, 
 crossed Jordan to enter upon the conquest of Canaan. 
 The conflict thus precipitated was not merely physical ; 
 
140 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 it was in a greater degree political or social, and moral or 
 religious. Two antagonistic systems of life were facing 
 each other. The Canaanites represented the antique 
 civilization of Western Asia ; they had cruel gods and 
 cruel laws, despotism prevailed, slavery was the corner- 
 stone of their institutions. The Hebrews, on the other 
 hand, held that freedom was the true basis of a state, 
 and law and justice its purpose. In their scheme despotism 
 had no place. The chiefs of the state, by whatever name 
 known, could not hold office without the assent of the 
 people, nor could they rule by mere will or caprice, but 
 by law. 
 
 The Hebrews finally triumphed, though the contest 
 was long and bitter. By the year 1050, a fairly settled 
 commonwealth had been established under the rule of 
 the priest-shophet EH. He was succeeded by Samuel, 
 in whose time the headship of the state was transferred 
 to a king, Saul of the tribe of Benjamin {c. 1020 B.C.). 
 It was not, however, until a quarter of a century later 
 that Israel was thoroughly united under the reign of 
 David. 
 
 During the three centuries between the crossing of 
 Jordan and the hegemony of David, the state was being 
 slowly cemented. The numerous city-kingdoms into which 
 it was divided at the conquest, were deprived of their kings 
 and converted into cantons or counties of the state. These 
 were called ^artin (cities) and were governed by cantonal 
 councils called ;sikne ha-ir. To these were confided 
 administrative and judicial powers, which were to be 
 exercised in harmony with the federal constitution and 
 laws. The better to effect this purpose, Levites and 
 nebiini^ agents of the central government, visited the 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 141 
 
 several cantons for the purpose of instructing and other- 
 wise aiding the local councils in their work. 
 
 These measures, however, did not prove adequate. The 
 subtle influence of native customs and ideas affected the 
 cantons, especially those in the remote districts. The 
 worship of JHVH w^as neither orthodox nor exclusive. 
 Canaanite ideas, religious and legal, were absorbed, and 
 a hybrid system resulted, which threatened to imperil 
 church and state. 
 
 In course of time, certain branches of jurisdiction were 
 withdrawn from the local councils and assumed by the 
 central government. Homicide was not. at first, one of 
 these. It was at a later period that the conflict con- 
 cerning the law of homicide became acute. 
 
 We do not know by direct evidence what the Canaanite 
 law on this subject was. There is, however, indirect 
 evidence. The laws of the Babylonian Hammurabi 
 {c. 2250 B.C.) are now accessible to us, and from them 
 may be derived a fair estimate of the legal notions prevalent 
 in Western Asia at that early period. The publication, 
 it is true, antedated the crossing of the Jordan by a 
 thousand years, and it might fairly be supposed that 
 they had become, in great part, outworn. Before passing 
 judgement on this point, we must remember that fifteen 
 hundred years after their publication, they were still studied 
 in Assyria, and five hundred years after that were made a 
 text-book in the Babylonian schools. This shows, at 
 leastj that the leading principles of the Code were still 
 accepted, however changed it may have been in some 
 of its details. It is true that we have no direct knowledge 
 that the people of Canaan ever accepted this Code. The 
 intrinsic probability that it influenced them is, however, 
 
142 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 considerable. Moreover, there are certain Canaanite 
 admixtures in the Torah, which have ah-eady been dwelt 
 upon, which seem to point directly to the Hammurabi 
 Code. 
 
 Our other indirect evidence is the Torah. We know 
 its legal principles, and when we find them in energetic 
 conflict with hostile principles, it is fair to conclude that 
 the latter are derived from the Canaanite law. 
 
 Guided by these helps, we infer that by the Canaanite 
 law of homicide, the killing of a man was not a crime 
 cognizable by the state, but a trespass, which gave the 
 family of the deceased a right to redress. There was no 
 inquiry as to the motive, and there were no degrees of 
 liability. This absolute right of redress in prehistoric 
 times was the right to kill the perpetrator or an equally 
 important member of his family. When the perpetrator 
 was killed, a right accrued to his family to seek redress, 
 and so it went on in a continuing series. This state of 
 affairs we call blood-feud or vendetta. 
 
 When the Hebrews entered Palestine, this stage had 
 long been passed by the Canaanites. While the blood-feud 
 persisted in theory, it was rendered practically nugatory 
 by the custom of compounding the trespass for money in- 
 stead of blood. Such money payment was called kofer, our 
 English ' wergild '. The procedure apparently was some- 
 thing of this fashion : The bereaved family impleaded the 
 slayer before the zikne ha-ir. The only question before 
 them was whether the accused killed the man ; the how 
 or why mattered not. If he was condemned, the repre- 
 sentative or go el of the family received a legal warrant 
 to kill him, unless the matter should be properly adjusted. 
 If there was to be chaffering about terms, the culprit 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 143 
 
 sought sanctuary in a makom, probably the capital city of 
 his */r, though there is reason to believe that a makom in 
 any other '/r would have availed as a safe place of refuge. 
 From this vantage-point the bargaining was conducted, 
 the makom-'^YiQSt being the most likely and convenient 
 intermediary. Unless the culprit and his family were 
 very poor, the matter was usually adjusted. The go'el 
 who represented the family, was naturally interested in 
 improving their estate, since, if they came to want, they 
 would look to him for help. The 7nakom-pnGst of course 
 expected an offering for his makom, if he were honest, and 
 if the reverse, a honorarium for his services would not have 
 been unwelcome. These were all the parties concerned, as 
 the state took no cognizance of the crime. 
 
 With this law the Hebrew law came in conflict. It 
 declared that homicide could never be a trespass (a mere 
 private injury). It was an offence against God and the 
 state, and its gravity in this aspect was such that all minor 
 interests like those of the family, were wiped out and 
 annulled. The sanctity of human life was the great 
 principle, and it had to be applied thoroughly. Its benefits 
 were accorded to the defence, as well as to the common- 
 wealth. Killing was not necessarily murder. It might 
 have been due to casualty, to misadventure, to an un- 
 thinking blow given in hot blood. In such cases it was 
 ranked as manslaughter, for which the punishment was 
 internment away from home in a makom^ or later in a 
 separated city, still later in an */r miklat, and finally in 
 a common prison. When the killing was with intent, 
 with malice prepense, it was murder, and the sole penalty 
 was death. 
 
 With such principles kofer was irreconcilable. No 
 
144 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 guilty man could escape by its means. If a murderer, he 
 must die ; if a manslayer, he must suffer segregation. 
 Money could not buy off either penalty. 
 
 The Canaanite law and the Hebrew law were thus in 
 crass opposition. Use and wont are powerful forces. 
 The zikiie ha-ir were affected by them, and murder must 
 often have gone unpunished, save by the enforcement of 
 money damages. The federal legates (Levites and nebzini) 
 doubtless secured some measure of respect for the law. 
 In the turbulent times, before the throne of David became 
 secure, this was probably all that could be accomplished. 
 That great warrior-king, after a life of turbulence, saw 
 clearly that what his kingdom needed was rest. In his 
 solemn charge to his successor, he declared that the word 
 of JHVH had come to him, announcing a son who should 
 be a man of rest (ish menuhah), in whose days there 
 should be peace and quietness (shaloin wa-sheket) in Israel 
 (i Chron. 22. 8, 9). 
 
 And Solomon cherished this ideal. So long as the 
 powerful barons could murder for money, there would 
 be no peace in the land. Then began the earnest and 
 determined course of law reform which we have en- 
 deavoured to describe. 
 
 The first step was the abolition of the right of sanctuary. 
 As the go^el could now drag the murderer from the altar, 
 there was no opportunity for protracted negotiation. The 
 go el's demands, however ruinous, would have to be com- 
 plied with. However well designed the measure, it did 
 not accomplish its purpose. An ingenious mako^n-^nQsty 
 an indifferent or perhaps friendly zikne ha-ir council, and 
 a go'el keener for money than for blood, could easily 
 manage to defeat the purpose of the government. 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 145 
 
 The next step was more drastic. The makom with its 
 priest, and the family go el were all eliminated. The right 
 of sanctuary for homicide was done away with. A new 
 federal officer, the go el ha-dam^ was sent to each canton 
 to watch the proceedings and to receive the death-warrant 
 for execution from the zikne ha-ir. Separated cities were 
 fixed upon as places to which the convicted murderer 
 would go for his appeal, and if he was a mere manslayer 
 to serve a term. 
 
 In this arrangement there was but one weakness. The 
 separated cities had their zikne ha-ir who were in friendly 
 relations with many other local councils, and who, more- 
 over, were not free from the taint of Canaanite assimilation. 
 
 It would appear that this statute was often evaded by 
 the obstinate adherence of the people to the practice 
 of kofer^ sometimes in murder and often in manslaughter. 
 There seemed but one way to remove the difficulty and 
 to assure the execution of untainted federal law. 
 
 This was the course pursued : Forty-eight cities were 
 selected, jurisdiction over which was to be abandoned by 
 the respective cantons, and ceded to the federal govern- 
 ment. These were the Levitical cities, inhabited by 
 persons whose allegiance to the federal government and 
 its laws was unquestionable. From among these the ''are 
 miklat (detention-cities) were selected. The zikne ha-ir 
 of these cities were, of course, Levites who were capable 
 and willing to enforce the Hebrew law. A national court 
 (the *Edah), sitting at Jerusalem, heard the appeals. In 
 this system every weakness was eliminated, except only 
 that the zikne ha-ir of the several cantons were still the 
 court of first instance. True, they had federal assessors 
 (Levites, Kohanim) and a federal sheriff (the^i?V/ ha-dam)^ 
 S. L 
 
146 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 and one might fairly believe that in such circumstances 
 they could not find a loophole to evade the enforcement 
 of the federal law, especially as there was now an express 
 statute forbidding kofer^ both in murder and in man- 
 slaughter cases. 
 
 It is, however, this statute which gives the clue to the 
 defect in the system. The common people, the family 
 go el and the zikne ha-ir were still favourable to the 
 practice of compounding the felony of homicide for money. 
 
 That the system, carefully guarded as it was, did not 
 perfectly succeed, may be taken for granted. In more 
 modern times and nearer our own homes, we are not 
 totally free of the sentiment which prefers large damages 
 to convictions for manslaughter. It was Jehoshaphat who 
 finally tore up hofer by the roots. I have in a previous 
 lecture described how he abolished the jurisdiction of the 
 zihie ha-ir in cases of homicide, by establishing federal 
 courts and sheriffs in every canton, with a supreme appel- 
 late court at Jerusalem. 
 
 Thus was the final victory for Hebrew law won after 
 a protracted contest lasting a century. At last, about 
 850 B.C., every man knew that the element of civil 
 damages or private satisfaction was eliminated from 
 homicide cases, and that the state alone had jurisdiction 
 of this high crime. 
 
 And now one final word. I am well aware that there 
 is room to question many of the definitions suggested 
 and hypotheses propounded in these lectures. It would 
 be unreasonable to hope for ready acquiescence in views 
 that run counter to inherited opinions. Many will think 
 the whole scheme of positing a life and death contest 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 147 
 
 between Canaanism and Hebraism audacious ; more, per- 
 haps, will look scornfully upon the endeavour to date one 
 of its most important manifestations, and to trace its 
 progress. With them I have no quarrel. The endeavour 
 has been to look at the facts honestly and without 
 prejudice. 
 
 If the labour, which has been one of love, helps an 
 earnest student, here and there, to a better understanding 
 of the Hebrew law of homicide, makes clearer the function 
 and short duration of the "ir miklat, strips the grisly features 
 from the Avenger of the Blood, and moves the Hebrew 
 lex talionis from the solid ground of history towards the 
 shifting sands of fable, it will have accomplished its 
 purpose. 
 
 L 2 
 
NOTE 
 
 The statement on page 45 concerning the alah is too 
 scanty to explain the meaning of Solomon's prayer. 
 
 Originally the word probably meant a curse. Other 
 meanings however developed. 
 
 When a master charged his servant with a special duty 
 he made him solemnly swear to perform it. This oath is 
 called a shehtah. Attached to this was the penalty for 
 disregarding the oath. This was the curse or alah de- 
 nounced by the master against the servant should he 
 prove recreant to his duty. Of this meaning of alah we 
 have the classical example in Abraham's charge to Eliezer 
 (Gen. 24. 2-41). 
 
 So when two parties made a covenant or treaty {berit) 
 the penal feature of the transaction was the alah. An 
 example of this is found in the treaty between Isaac and 
 Abimelech (Gen. 26. 28-31). Other instances of a berit 
 with alah are to be found in Deut. 29. 12-28 and in Jer. 34. 
 13-22, though in the latter the word alah is not used. 
 
 Here, however, we are specially concerned with the 
 juridical alah. In its oldest form it seeks to procure a 
 confession from a woman charged with adultery which 
 cannot be proved. The procedure is given in full detail in 
 Num. 5. 12-31. 
 
 The later development of the alah is that when a tort 
 has been committed and the perpetrator is unknown either 
 to the injured party or to the authorities, there is publicly 
 proclaimed in the temple what we would call a subpoena 
 to confess or to testify. This is an adjuration to the guilty 
 party to come forward and confess or to any witness to 
 come forward and testify. As the circumstances prevent 
 the service of such a subpoena upon any known person, 
 it is, as it were, discharged into the community by procla- 
 mation (kol alah). The imposition of the penalty or curse 
 (alah) must of necessity be left to Heaven. The passages 
 bearing on this subject are i Kings 8. 31, 32 ; 2 Chron. 6, 
 
 22, 23 ; Lev. 5. 1-4 ; Prov. 29. 24. 
 
 148 
 
BIBLICAL PASSAGES CONSIDERED 
 
 Genesis 
 
 
 
 PAGE 
 
 Exodus 
 
 PAGE 
 
 4. 8-16 ... 137 
 
 20. 2 
 
 III 
 
 4. 15 
 
 
 
 61 
 
 20. 7 
 
 . 104 
 
 4. 24 
 
 
 
 61 
 
 20. 13 
 
 21 
 
 9-5 . 
 
 
 
 • 33» 57 
 
 20. 22 
 
 37 
 
 9-5, 6 
 
 
 I 
 
 I3» 137 
 
 21. I 
 
 37 
 
 10. 9 
 
 
 
 38 
 
 21. 2 
 
 III 
 
 12.6 
 
 
 
 41 
 
 21.5,6 . 
 
 112 
 
 13-3 
 
 
 
 41 
 
 21.6 
 
 37 
 
 13. 4 
 
 
 
 41 
 
 21. 12-14, 20-32 
 
 • 22-3 
 
 17. 14 
 
 
 
 126 
 
 21. 12-14 
 
 . 36, 40 
 
 24. 2-41 
 
 
 
 148 
 
 21. 12 
 
 113, 126 
 
 24. 41 
 
 
 
 . 104 
 
 21.12,16,17,19,20,22 129 
 
 25. 27, 28 
 
 
 38 
 
 21. 13 . 
 
 . 136 
 
 26. 28-31 
 
 
 148 
 
 21. 14 
 
 • 37, 51 
 
 27- 3' 5, 7j 33 
 
 
 38 
 
 21. 16 
 
 112 
 
 28. 11-19 
 
 
 41 
 
 21. 18 
 
 • 133 
 
 39. 20, 21, 22, i 
 
 23 • 
 
 131 
 
 21. 18, 19, 20 . 
 
 122 
 
 40. 3, 4, 5, 7 
 
 
 131 
 
 21. 18, 19, 22 . 
 
 121 
 
 41. 10 
 
 
 131 
 
 21. 19 
 
 126 
 
 42. 17, 19 
 
 
 131 
 
 21.20 . 114, 
 
 126, 128 
 
 42.17 
 
 
 134 
 
 21. 20-21 . 
 
 . 36, 61 
 
 48. 16 
 
 
 59 
 
 21. 20, 21, 26, 27, 32 109 
 
 
 
 21.21,23-5 . 
 
 130 
 
 Exodus 
 
 
 21. 22 
 
 37, 123 
 
 4. 23-6 . 
 
 2 
 
 21. 22-5 . . 54, 
 
 119,124 
 
 4. 29-30 
 
 
 8 
 
 21. 28-32. 
 
 104 
 
 5.3 • 
 
 
 . 83 
 
 21. 28 
 
 . 104 
 
 6. 6 . 
 
 
 60 
 
 21. 29 
 
 52 
 
 10. 23 
 
 
 33 
 
 21. 29, 32. 
 
 . 139 
 
 12. 15-19 
 
 
 126, 127 
 
 21. 30 
 
 • 37, 51 
 
 12. 21 
 
 
 8 
 
 22. I (2) . . 23 
 
 , 34, 134 
 
 12. 29 
 
 
 'Sh 137 
 
 22. 2 (3) . 
 
 23 
 
 15. 13 . 
 
 
 60 
 
 22. 3 
 
 . 126 
 
 13- 3» 14 • 
 
 
 III 
 
 22. 6, 7 (7, 8) . 
 
 • 134 
 
 15- 13 . 
 
 
 60 
 
 22.8(9) . . 
 
 37, 104 
 
 16. 15 
 
 
 33 
 
 22. 27 (28) 
 
 37 
 
 17.6 
 
 
 8 
 
 23- 2, 3, 6, 7, 8, 9 
 
 97 
 
 19. 7 
 
 
 . 
 
 8 1 
 
 23- 7 
 
 99, 103 
 
 349 
 
I50 
 
 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 Exodus 
 
 PAGE 
 
 Numbers 
 
 PAGE 
 
 23. 8 . . 
 
 104 
 
 15-2 
 
 27 
 
 30- 33, 38 
 
 126 
 
 15- 24, 29, 30 . 
 
 82 
 
 30. 38 . 
 
 • 127 
 
 15. 30, 31 
 
 . 126 
 
 31' 14, 15 
 
 126, 127 
 
 15. 32-6 . 
 
 . 9, 128 
 
 
 
 15.32,33- 
 
 . 134 
 
 Leviticus 
 
 
 15- 34 . 
 
 131, 136 
 
 4. 3, 13, 22, 27. 
 
 81 
 
 15. 35, 36- 
 
 • 34, 83 
 
 5. 1-4 
 
 . 148 
 
 18. 20, 23, 24 . 
 
 71 
 
 5. 15 
 
 81 
 
 19. 13, 20. 
 
 126, 127 
 
 7. 20, 21, 25, 2) 
 
 r 126, 127 
 
 26. 62 
 
 71 
 
 17- 4, 9> 14 
 
 126, 127 
 
 27. i-ii . 
 
 9 
 
 17. 13 . 
 
 • 38 
 
 31. 2, 3 . 
 
 61 
 
 18. 29 
 
 126 
 
 31. 10 
 
 27 
 
 19. 5-8 . 
 
 126, 127 
 
 31. 19 . 
 
 30 
 
 19. 13, 20 
 
 . 126 
 
 31. 50 • 
 
 • 134 
 
 19. II 
 
 . 98 
 
 35. 11-33. 
 
 • 25-7 
 
 19. 15 . 
 
 97 
 
 35. 12, 24, 17 . 
 
 73 
 
 19. 16, 17 
 
 . 98 
 
 35. 16-19, 20, 
 
 21 . 84 
 
 19. 18 
 
 61 
 
 35. 16-27. 
 
 . 83 
 
 19. 20 
 
 . 126 
 
 35. 16, 21-3 
 
 • 85 
 
 19- 35 . 
 
 . 98, 99 
 
 35. 16, 17, 18 
 
 • 113 
 
 20. 9,11,12,13, 
 
 16,27 58 
 
 35- 24-37 
 
 86 
 
 20. 5, 17, 18 . 
 
 . 126 
 
 35. 26, 27, 30 
 
 . 87 
 
 20. 18 
 
 . 127 
 
 35. 25 
 
 82 
 
 21. 18 
 
 77 
 
 35- 27 . 
 
 34 
 
 22. 3 
 
 126, 127 
 
 35- 28, 31-4 
 
 74 
 
 22, 23 
 
 . 76 
 
 35- 30 . 
 
 loi, 113 
 
 23. 21, 31. 
 
 27 
 
 35- 33.34- 
 
 57 
 
 24. 10-16. 
 
 9 
 
 36. I-IO . 
 
 9 
 
 24. 10-23. 
 
 89, 120 
 
 
 
 24. 12 
 
 131. 136 
 
 Deuteronomy 
 
 
 24. 14 
 
 . . 83 
 
 I. 16, 17 . 
 
 98, Id 
 
 24. 14, 23 
 
 34 
 
 4. 41-3 . 
 
 23-4, 63 
 
 24. 17, 21 
 
 29, 113 
 
 5.6 . . 
 
 III 
 
 24. 19 
 
 . 123 
 
 5. II 
 
 104 
 
 25. 10 
 
 III 
 
 6.21 
 
 III 
 
 25- 24, 25, 33, 
 
 49 . 60 
 
 7.8. . 
 
 III 
 
 25. 46 
 
 33 
 
 8. 14 
 
 III 
 
 26. 13 
 
 III 
 
 10. 9 
 
 71 
 
 
 
 10. 17, 18 
 
 . . 98 
 
 Numbers 
 
 
 12. 2, 3 . 
 
 41 
 
 6- 12-31 . 
 
 148 
 
 12. 12 
 
 72 
 
 6.3. . 
 
 51 
 
 13.6(5), II (i< 
 
 3) .III 
 
 9- 13 
 
 126, 127 
 
 14. 16 
 
 . 105 
 
 14. 4 
 
 33 
 
 14. 27, 29 
 
 72 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 151 
 
 Deuteronomy 
 
 
 PAGE 
 
 Joshua 
 
 page 
 
 16. 18-20 
 
 
 98 
 
 7. 25 
 
 • 34, 83 
 
 16. 18 
 
 95, 
 
 126 
 
 9. 4 . . 
 
 . 38 
 
 17.6 . 
 
 
 87 
 
 10. 13 
 
 61 
 
 17. 6, 7 . 
 
 
 lOI 
 
 13- 14, 33 
 
 72 
 
 17- 8-13 . 
 
 
 97 
 
 14. 3 
 
 72 
 
 17. 12 
 
 
 99 
 
 20. 2-9 . 
 
 . 28, 88 
 
 17. 12, 13 
 
 
 38 
 
 20. 3 
 
 74, 113 
 
 18. I, 2 . 
 
 
 72 
 
 20. 6, 9 . 
 
 75 
 
 18. 20, 22 
 
 
 38 
 
 21. 18 
 
 73 
 
 19. 3-15 • 
 
 
 24-5 
 
 
 
 19. 6 
 
 
 69 
 
 Judges 
 
 
 19. 10 
 
 33, 67, 
 
 103 
 
 6. 30 
 
 83, lOI 
 
 19. II 
 
 
 113 
 
 8. 21 
 
 . 83 
 
 19. 12 
 
 . .' 68, 75 
 
 14. 4 
 
 39 
 
 19. 13 
 
 
 33 
 
 15-7 
 
 61, 129 
 
 19. 15 
 
 ' 68,*87, 
 
 lOI 
 
 15. 12 
 
 84 
 
 19. 16-21 
 
 
 120 
 
 16. 21, 25 
 
 • 131 
 
 21. 1-9 . 
 
 32,51,57,90 
 
 16. 28 
 
 61, 129 
 
 21.5 
 
 
 52 
 
 18. 25 . 
 
 . 84 
 
 21.8 
 
 
 104 
 
 
 
 21.17 . 
 
 
 134 
 
 I Samuel 
 
 
 21. 21 
 
 
 83 
 
 2. 18, 35 . 
 
 49 
 
 22. 8 
 
 
 58 
 
 3. I, 20 . 
 
 49 
 
 22. 18 
 
 126, 
 
 130 
 
 8. 3 . . . 
 
 50 
 
 22. 21 
 
 83. 
 
 lOI 
 
 12. 1-5 . 
 
 49 
 
 22. 24 
 
 
 83 
 
 14.38-42. 
 
 lOI 
 
 24. 5 
 
 
 104 
 
 19. 2 
 
 . 64 
 
 24. 12, 13 
 
 
 51 
 
 22. 17, 18 
 
 84 
 
 24. 16, 17 
 
 
 98 
 
 24. II 
 
 . 38 
 
 25. I 
 
 
 99 
 
 24. 19 
 
 . 134 
 
 25. 2, 3 . 1 
 
 13' 114, 
 
 126 
 
 25. 20 
 
 .. 64 
 
 25. I, 2 . 
 
 
 104 
 
 26. 21 
 
 81 
 
 25. II, 12 
 
 
 124 
 
 30. II 
 
 . 135 
 
 27. 15-24 
 
 
 63 
 
 
 
 27. 25 . 
 
 
 99 
 
 2 Samuel 
 
 
 29. 12-28 
 
 
 148 
 
 I. 15 
 
 84 
 
 32. 35, 41 
 
 
 61 
 
 2. 8-23 . 
 
 31 
 
 32. 43 • 
 
 
 62 
 
 3. 21, 22, 23-7. 
 
 31 
 
 33- 12 
 
 
 45 
 
 5. 6, 8 . 
 7. 14 
 
 . 133 
 . 113 
 
 Joshua 
 
 
 
 12. 12 
 
 64 
 
 2. 17-20 . 
 
 
 104 
 
 12. 24 
 
 45 
 
 5. 2-9, 10-12 . 
 
 . 
 
 6 
 
 14. 1-24 . 
 
 91 
 
 7. 14-18 . 
 
 . 
 
 lOI 
 
 14. 7, n • 
 
 94 
 
 7. 24 
 
 . 
 
 34 
 
 14. 9 
 
 104 
 
152 
 
 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 2 Samuel 
 
 PAGE 
 
 Isaiah 
 
 PAGE 
 
 14. 25, 26 
 
 43 
 
 30. 16 
 
 79 
 
 15. I 
 
 43 
 
 33- 15 • 
 
 . . 80 
 
 15.4 
 
 104 
 
 34. 8 
 
 61 
 
 20. 18 
 
 92 
 
 35- 4 
 
 61 
 
 22. 48 
 
 61 
 
 36. 12 
 
 . 136 
 
 
 
 42. 7 
 
 . 131, 132 
 
 I Kings 
 
 
 47- 3 
 
 61 
 
 2. 5 . 
 
 • 30, 31 
 
 59-7 
 
 • 139 
 
 2.25,29,31,32, 
 
 34, 46 84 
 
 59- 17 
 
 61 
 
 2. 26 
 
 72 
 
 59- 19 
 
 79 
 
 2. 28, 29 . 
 
 79 
 
 61. 2 
 
 61 
 
 2- 33 
 
 • 58 
 
 62. 6 
 
 . 133 
 
 3. 9, 12, 28 
 
 44 
 
 63. 4-9 . 
 
 59 
 
 4. . 
 
 • 44, 67 
 
 63.4 
 
 60 
 
 5. 5 (4. 25) 
 
 44 
 
 
 
 7.7. 
 
 44 
 
 Jeremiah 
 
 
 8. 21 
 
 44 
 
 7.6 . . 
 
 • 139 
 
 8. 31, 32 . 
 
 . 148 
 
 II. 20 
 
 61 
 
 8.32 . 
 
 45, 104 
 
 13. 14 . 
 
 33 
 
 16. II 
 
 60 
 
 20. 2 
 
 . 132 
 
 18. 27 
 
 . 136 
 
 20. 10, 12 
 
 61 
 
 21. 10, 13 
 
 70 
 
 22. 3,17 . 
 
 139 
 
 21. 10, 18 
 
 102 
 
 25. 26 
 
 33 
 
 22. 27 
 
 . 132 
 
 26. 15 
 
 57 
 
 
 
 29. 26 
 
 . 132 
 
 2 Kings 
 
 
 30. II 
 
 104 
 
 5. 1-8 . 
 
 40 
 
 32. 2, 8, 12 
 
 • 131 
 
 7.6 . . 
 
 33 
 
 32. 7, 8 . 
 
 60 
 
 9- 3» 10 . 
 
 . 78 
 
 32. 10, 12, 25 
 
 102 
 
 9. 7. 
 
 62, 129 
 
 32. 12 . 
 
 136 
 
 14. 6 
 
 . 105 
 
 33-11 . 
 
 • 131 
 
 17-4 
 
 . 132 
 
 34. 13, 14, 17, i 
 
 22 III, 148 
 
 25, 27 . 
 
 • 132 
 
 37-4 
 
 . 132 
 
 
 
 37. 15 
 
 . 131 
 
 Isaiah 
 
 
 37- 15. 18 
 
 . 132 
 
 I. 24 
 
 61 
 
 37. 16 . 
 
 •• 131,137 
 
 5. 13 
 
 . . 63 
 
 37. 21 
 
 . 131 
 
 5. 23 
 
 . 104 
 
 38.6,7,9,10,11, 
 
 13 131,137 
 
 8. 2 . 
 
 102 
 
 38. 6, 13, 28 
 
 • 131 
 
 10. 3 
 
 , . 78 
 
 39- 14, 15 
 
 • 131 
 
 13. II 
 
 . . 38 
 
 46. 10 
 
 61, 129 
 
 20. 6 
 
 . . 78 
 
 46. 28 
 
 104 
 
 24. 22 
 
 I3i>i34, 137 
 
 48. 27 . 
 
 135 
 
 28.7 
 
 . . 81 
 
 50- 15 • 
 
 129 
 
 28. 20 
 
 77 
 
 50. 28 . 
 
 61 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 153 
 
 Jeremiah 
 
 
 PAGE 
 
 51.6 
 
 
 61 
 
 51.36 . 
 
 61 
 
 129 
 
 52. II . 
 
 
 131 
 
 52. 31 • 
 
 
 132 
 
 EZEKIEL 
 
 
 
 4. 17 
 
 
 33 
 
 6. 6 . 
 
 
 27 
 
 18. 1-32 . 
 
 
 107 
 
 24. 8 . . 
 
 
 61 
 
 24. 23 
 
 
 33 
 
 25. 12, 14, 15, 17 
 
 
 61 
 
 25. 15 . 
 
 
 129 
 
 33- 30 • 
 
 
 33 
 
 36. 23, 24 
 
 
 107 
 
 37. 1-14 . 
 
 
 107 
 
 47. 14 
 
 
 33 
 
 HOSEA 
 
 
 
 9. 7 . 
 
 
 132 
 
 Joel 
 
 
 
 4. 2, 12 . 
 
 
 100 
 
 4. (3) 19 • 
 
 
 139 
 
 4.(3)21 . 
 
 57 
 
 104 
 
 Amos 
 
 
 
 2. 6 . 
 
 5h 
 
 104 
 
 2. 7, 8, 12 
 
 
 51 
 
 5. 10, 12, 15 . 
 
 
 51 
 
 5. 12 
 
 49, 
 
 104 
 
 5-19 
 
 
 84 
 
 7. 10, 12 . 
 
 
 50 
 
 MiCAH 
 
 
 
 3. II 
 
 
 50 
 
 6. 4 . 
 
 
 III 
 
 Nahum 
 
 
 
 I. 2 . 
 
 
 61 
 
 I. 3 . 
 
 
 104 
 
 Haggai 
 
 
 
 2. 22 . 
 
 
 33 
 
 26 
 
 Zechariah 
 7. 9, 10 
 II. 6 
 
 Malachi 
 
 2. 10 
 
 Psalms 
 
 39- 4 (3) 
 94. 21 
 
 Proverbs 
 I. 4 . 
 I. 16 
 4- 23 
 6. 17 
 6. 31 
 6. 34 
 
 8. 5, 12 
 13. 24 
 
 17- 15, 23 
 17. 23 
 
 18.5, 17 
 
 19- 5, 9 
 
 22. 15 
 
 23. 13 
 
 24. 24 
 
 28. 17 
 
 29. 15 
 29. 24 
 
 Job 
 
 9. 20 
 
 33. 24 
 
 34. 17 
 36. 12 
 
 Song of Songs 
 3. 3M 
 5-7- 
 
 Ruth 
 
 2. 20 
 
 3. 9» 12, 13 
 
 4. i-io, 14 
 
 79» I 
 
 page 
 
 33 
 
 135 
 
 33 
 
 69 
 104 
 
 38 
 139 
 131 
 139 
 135 
 
 61 
 
 38 
 
 113 
 104 
 
 50 
 104 
 104 
 113 
 "3 
 104 
 
 31, 137 
 113 
 148 
 
 104 
 
 135 
 104 
 
 63 
 
 134, 135 
 • 135 
 
 60 
 60 
 60 
 
154 
 
 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 Lamentations 
 
 page 
 
 I Chronicles 
 
 page 
 
 4. i8 . . 
 
 . 38 
 
 22. 8, 9 . 
 
 . 144 
 
 
 
 26. 16 
 
 133, 134 
 
 ECCLESIASTES 
 
 
 
 
 4. 14 
 
 >3i 
 
 2 Chronicles 
 
 
 5.6 . . 
 
 82 
 
 6. 22, 23 . 
 
 . 148 
 
 
 
 6.23 
 
 
 104 
 
 Esther 
 
 
 16. 10 
 
 
 132 
 
 8. 13 . . 
 
 . .29 
 
 17.2 
 17.7 
 
 
 95 
 95, 100 
 
 Ezra 
 
 
 17.8 
 17. 9 
 
 
 96, 100 
 
 96 
 
 7. 12-26 . 
 
 Nehemiah 
 
 . 125 
 
 18. 26 
 19.4 
 19- 5, 8 
 
 
 . 132 
 
 99 
 
 . 96 
 
 3-25 
 
 • 131 
 
 25.4 
 
 
 • 105 
 
 5- 7 . 
 
 33 
 
 
 
 12. 39 . 
 
 • 131 
 
 Talmud Babli 
 
 
 
 
 Sotah 8b. 
 
 . 138 
 
 I Chronicles 
 
 
 Sanhedrin 52 b. 
 
 . 129 
 
 22. 6-9 . 
 
 45 
 
 Sanhedrin 
 
 90 a . 
 
 . 138 
 
INDEX 
 
 Abner . . . . ' . 
 Absalom .... 
 Achan, case of . . . 
 alah (oath, curse, subpoena) . 
 Amercement 
 
 'am ha-ares (federal high court) 
 Amos .... 
 
 afiah, innah le-yado^ io'anah . 
 Anathoth (federal prison city) 
 ' anosh ye anesh (punitive damages) 
 anshe Israel (leading men) 
 Appeal, Apellate Tribunal 
 
 see Supreme Court. 
 arah (lie in wait) . 
 arur Code . 
 Asahel, murder of 
 ason (miscarriage) . 
 
 Battlement for roof 
 
 Berit (covenant, treaty) 
 
 bet ha-asuppim (prison) 
 
 bet ha-bor (prison) . 
 
 bet ha-pekudot (prison) 
 
 bet ha-kele or keli (prison) 
 
 bet ha-surim^ or asur or asirim (prison) 
 
 bet ha-sohar (prison) 
 
 bet ha-viahpeket (prison or mad house) 
 
 bi-bli da at (unwittingly) 
 ^ Blood, prohibited . 
 Y^ Blood-covenant 
 Oj31ood-feud . 
 ' see Vendetta Law. 
 
 ~y^ Blood-guilt . 
 
 Bne-Israel 
 
 bor (prison) . 
 
 Bribe, see shohad. 
 
 38,39 
 
 63, 64, 65 
 
 46, 47, 48, 
 
 30> 56, 57, 58, 61, I 
 
 . • . 79, 
 
 PAGE 
 30, 31 
 
 43' 92, 93 
 
 34 
 
 45, 148 
 
 126 
 
 46,81 
 
 50 
 
 40, 63, 80, 86 
 
 72 
 
 54, 129 
 
 43 
 
 67,74,75,96 
 
 64, 85 
 
 63 
 
 31 
 
 • 53, 54, 122 
 
 58 
 148 
 
 133 
 131 
 131 
 132 
 
 131 
 131 
 
 32, 133 
 
 , 86, 88 
 
 56 
 
 2, 3, 6 
 
 51, 142 
 
 03, 106 
 
 73.74 
 80, 131 
 
 74, 
 
 I 
 
 80 
 
 Canaanite Law and Practice 
 
 7, 35, 41, ^^^ 99, loi, 102, 104, 
 109, 121, 124, 125, 130, 140, 141 
 
^56 
 
 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 Children suffer for sins of parents 
 
 Circumcision 
 
 City Kingdoms, see Vr, 'arim. 
 
 Class distinction, in law 
 
 Covenant at Gilgal 
 
 dallim ..... 
 dam^ damim, see Blood-guilt 
 
 deme milhamah (war blood) 
 David ..*... 
 Death penalty 
 
 ehah (enmity) 
 
 ebyonim .... 
 
 'edah (Federal court) . 34, 73, 75 
 
 seat of, in Jerusalem 
 ElTs Sons .... 
 Elishah .... 
 
 Elohim (tribunal) . 
 Enslavement 
 Evidence, law of . 
 Exile, see kareU 
 Extradition 
 
 Ezra 
 
 ezrah (native) 
 
 Federal Assessors . 
 
 Federal Courts, see "edah. 
 
 Federal Delegate . 
 
 Federal Law .... 
 
 Federal Sheriff, see go* el ha-dam. 
 
 be-feid (suddenly) 
 
 PAGE 
 
 04-107 
 
 2,3 
 
 23 
 
 6 
 114 
 
 29, 30, 31 
 
 3^ 92, 93> 140 
 15, 126 
 
 84, 85, 86 
 114 
 76,82,83,86,99,120,136,145 
 
 82, 88 
 
 49 
 40 
 
 37 
 
 126 
 
 68, 70, 87-8, 1 01-2 
 
 . . 67 
 
 125 
 
 89, 91, 112, 120, 121 
 
 145 
 
 7>35> 5^ 52, 144 
 89 
 
 85,86 
 
 gctal^ defined 
 
 ^^r, ^^rz>7? (stranger) .73, 
 
 Gershom, son of Moses 
 Gideon's trial 
 
 God's hand in human affairs . 
 
 go el (family representative) . 52, 55, 56, 60, 66, 142, 143, 144, 146 
 
 go' el ha-dam (Federal sheriff) . 55, 56, 58, 59, 60, 62, d^, 66, 67, d'^^ 
 
 69, 70, 7i» 73, 74, 75, 78, 83, 86, 88, 91, 92, 93, 94, 95, 
 
 99, 137, 145 
 Goring ox 13,16,52,53 
 
 59. 60 
 
 89, 90, 91, 112, 120, 121 
 
 2 
 
 lOI 
 
 38-40 
 
 ham lihho (be in earnest) 
 
 69 
 
THE ANCIENT HEBREW LAW OF HOMICIDE I57 
 
 PAGE 
 
 Hammurabi Code. 2, 4, 6, 10-21, 46, 47, 48, 54, 105, 107, 108, 
 
 109. 112, n8, 124, 130, 141, 142 
 hataft damim (member of blood-covenant guild) . 2, 3 
 
 Homicide, state concern 
 justifiable 
 by misadventure 
 in Hammurabi Code 
 see Manslaughter, Murder. 
 
 Imprisonment 
 
 '/r, 'arim (city kingdoms) 
 
 *ar€ Yehudah 
 
 *ir {*are) mtklat (state prison) 
 83, 86, 87, 
 
 'are ha-mtiaddah 
 ishah hakamah 
 Ishbosheth . 
 
 Jehoshaphat . 
 Joab 
 
 kalat (confine) 
 karet (banishment) 
 kofcr (ramom) . 4, 5, 6, 15, 16 
 65, 68, 71, 74, 99 
 see wergild, 
 ko/icfi, kohanim (priest, federal author 
 
 32, 42, 48, 55, 56, 57, 58, 143 ^-- 
 
 29-31. 34 
 
 53 
 
 11-2 1 
 
 . 128, 131, 136 
 
 6, 41, 42, 48, 95, 96, 97, 140 
 
 95, 96 
 
 73. 74, 75. 76, 77. 79, 80, 82, 
 
 88, 95, 99. 137, 143, M5' 147 
 
 75 
 
 92, 93 
 
 31 
 
 kohcn ha-gadol (High-priest) . 
 
 see makom-^x\^%i, 
 kol alah (proclamation of the alah) 
 
 95-9, 100, 146 
 • 31, 92, 93, 94, 95 
 
 76, 77 
 
 126-8 
 
 37, 48, 49,50,51,52,55,62, 
 
 no, 121, 142, 143, 145, 146 
 
 ty) • 49, 51, 72, 90, 96, 97, 
 
 ICO, 125, 145 
 
 73, 76, 86 
 
 Levites 
 
 see Federal delegate. 
 lex talionis . 
 
 148 
 
 71, 72, 140, 144, 145 
 2, 3, 4, 19, 20, 104, 115-125, 130 
 
 mahpekety see bet ha-mahpekei, 
 
 makom (ecclesiastical section of Yr). 37, 40, 41, 42, 65, 68, 75, 77, 
 
 136, 137, M3 
 
 its furnishings 41 
 
 makom-Vx\^%\.% 48, 49, 55, 62, 143 
 
 >^. Manslaughter, defined 85 
 
 y^ kinds of . . 37-4©, 52, 53, 63, 64, 83, 85, 86, 99 
 
 Wflftz (arrest) 134 
 
 masger (prison) ....... 131 
 
 maUarah (prison) 131 
 
 viiddah ke-neged middah {ycit'X^yix^ iox xtit^%\xxt) . 138 
 
158 
 
 THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 > 
 
 
 PAGE 
 
 Midian 
 
 30 
 
 migrash (state territory) 
 
 72 
 
 mtklat, defined 
 
 76-7 
 
 mishmar (prison) . 
 
 131 
 
 viizheah (altar) 
 
 40, 4i> 77 
 
 moshabot (districts) 
 
 27 
 
 Murder 
 
 37-40, 52, 83, 85, 99 
 
 >-^ defined . 
 
 64,84-5 
 
 Naaman 
 
 39> 40 
 
 Naboth, case of . 
 
 70 
 
 nagid (King's minister) 
 
 96 
 
 nahalah (inheritance) 
 
 71-2 
 
 naham, see nakam. 
 
 
 nakam (avenge) 
 
 59, 60, 61, 62 
 
 nakom yiiinakem 
 
 . 114, 126, 128, 129-137 
 
 naki (once acquitted) 
 
 102, 103, 104 
 
 nebivn, see Federal deleg 
 
 ^ates. 
 
 nus (hasten) . 
 
 . . . . 77-9 
 
 Oracle trial . 
 
 . 8, 45, 68, 89, loi, 128 
 
 'ormah (craftiness) . 
 
 37,38,64,84 
 
 oyeb, see ebah» 
 
 
 paga\ be-figo (strike) 
 
 83,84 
 
 pelilim (tribunal) , 
 
 37,54,121 
 
 Police . 
 
 n^. 136 
 
 Police Courts 
 
 126 
 
 rashd (guilty) 
 
 45, 50, 103 
 
 Retaliation, law of, see lex talionis. 
 
 sadah (lying in wait) 
 
 38,63 
 
 sediyah . 
 
 84,85 
 
 saddik (innocent) . 
 
 45, 51, 103, 106 
 
 Samson 
 
 39 
 
 Samuel 
 
 42, 40 
 
 Samuel's Sons 
 
 49 
 
 Sanction of law . 
 
 21 
 
 Sanctuary . 
 
 . 40, 42, 52, 65, 75, 76, 95, 99, 144 
 
 sard (stretch) 
 
 77 
 
 sarah (apostasy) . 
 
 45j68, 120, 121 
 
 Scourging 
 
 126, 130 
 
 sefer (document) . 
 
 90 
 
 sekirim 
 
 114 
 
 ba-seier (secretly) . 
 
 63 
 
THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 shdar (court) 
 shagah, shagag (err) 
 
 bi-shegagah . 
 shehet (rod) . 
 shebu'ah (oath) 
 shem (oracle) 
 sheroshi (exile) 
 
 see karet. 
 sho/ek dam (murderer) 
 shohad (bribe) 
 sirCah (hatred) 
 sinok (prison) 
 sinnor, see sinok. 
 Slavery 
 Solomon 
 Subpoena 
 Supreme Court, in Jerusalem 
 
 iamak (receive) 
 Tekoah, woman of 
 Torah, written and oral 
 
 ulam ha-mishpat (porch for throne) 
 
 Vendetta Law . . 
 see Blood-feud. 
 
 Walls, guarded . . . . 
 War-blood, see deme viilhamah. 
 wergild . . . . . 
 
 see kofer. 
 Witnesses . . . . . 
 
 see Evidence, law of. 
 
 yad ramah (wilful) 
 yaphog lihbo (disbelieve) 
 yazid (coming presumptuously) 
 yeham lebabo (earnest, zealous) 
 yoshebim (magistrates) . 
 
 zekenim, zikne ha-ir (elders) . 7, 
 55, 62, 66, 67, 71, 73, 74 
 loi, 124, 140, 142, 144, 
 
 159 
 
 PAGE 
 
 51 
 
 81 
 
 80, 81, 82, 88 
 
 113 
 
 148 
 
 33. 34. 44, 89, 120 
 129 
 
 138, 139 
 49, 50 
 84,85 
 
 132, 133 
 
 36, 107-114 
 
 44, 45, 56, 144 
 
 148 
 
 96, 99 
 
 80 
 93, 104 
 
 7, 8,9 
 
 44 
 
 46, 47, 48, 51, 69 
 
 135, 136 
 
 3, 4, 5, 6, 47, 48, 50, 121 
 
 68, 70, 75, loi, 102 
 
 Zipporah 
 
 82 
 
 70 
 
 34, 84 
 
 69-70 
 
 135-6 
 
 32, 35, 41, 42, 46, 48, 51, 52, 
 , 75, 80, 82, 87, 88, 90, 93, 99, 
 145, 146 
 
 2 
 
l6o THE ANCIENT HEBREW LAW OF HOMICIDE 
 
 Hebrew Words Considered (which see) : 
 
 alah ; 'am ha-ares ; anah ; 'anosh ye anesh ; anshe Israel ; arah ; 
 arur ; ason; berit ; bet ha-asuppim ; bet ha-bor ; bet ha-pekudot, 
 bet ha-kele ; bet ha-surim ; bet ha-sohar ; bet ha-??iahpeket ; bi-bli 
 ddat ; bor ; dallim ; dam, damwi, deme milhamah ; ebah ; ebyonim; 
 'edah; ezrah ; be-fetd ; ga'al; go' el; go el ha-dam ; ham libho ; 
 hatan damim ; *ir, *arim, 'are, Vr miklaU 'are ha-mii addah ; ishah 
 hakamah ; kalat; karet ; ko/er ; kohen, kohanim, kohen ha-gadol ; 
 kolalah; mahpeket ; makom ; 7?iasa ; masger ; mat t arah ; middah 
 ke-neged middah ; viigrash; miklat ; mishmar ; mizbeah; moshabot; 
 nagid ; nahalah ; naham ; nakam ; nakom yinnakem ; naki; nebiim; 
 nus ; 'ormah ; oyeb ; pagd ; be-fig'o ; pelilim ; rashd ; sadah, 
 sediyah ; saddik ; sard ; sarah ; sefer ; sekirim ; ba-seter ; shdar; 
 shagah, shagag, bi-shegagah ; shebet ; shem; sheroshi ; shofek dam; 
 shohad ; sin ah; sinok ; sinnor ; tamak ; ulam ha-mishpat ; yad 
 ramah ; yaphog libbo ; yazid ; yeham lebabo ; yoshebtm ; zekenim, 
 zikne ha-ir. 
 
RETURN TO the circulation desk ot any 
 University ot Calitornia Library 
 or to the 
 NORTHERN REGIONAL LIBRARY FACILITY 
 BIdg, 400, Richmond Field Station 
 University ot California 
 Richmond, CA 94804-4698 
 
 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS 
 
 • 2-month loans may be renewed by calling 
 (510)642-6753 
 
 • 1-year loans may be recharged by bringing 
 books to NRLF 
 
 • Renewals and recharges may be made 4 
 days prior to due date. 
 
 DUE AS STAMPED BELOW 
 
 NOV 2 1996 
 
 ELEY 
 
 2.000(11/95) 
 
 LD 21- / 
 
U.C. BERKELEY LIBRARIES 
 
 C0Q4aibQ73 
 
 ':v\f t 
 
 ^"9 
 
 32«55y 
 
 7 
 
 UNIVERSITY OF.CAUFORNIA LIBRARY