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THE ANCIENT HEBREW LAW OF HOMICIDE* 
By Mayer Sulzberger, Philadelphia. 

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 {ishak hakamafi). 

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- 

* A course of five lectures delivered before the Dropsie College for 
Hebrew and Cognate Learning, March 31, April 3, 7, 10, and 14, 1913. 

559 



560 THE JEWISH QUARTERLY REVIEW 

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-JHVH) that 
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 te^rvago'el ha-dam. The people who demanded 
justice against the murderer are called kol-ha-tnishpahah, 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 sikne ha-ir or to any other authority. 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 561 

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 
[tmmitehti be-nefesh ahiw asher harag we-nashmidah gam 
et ha-yoresh) (a 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 gdel 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 go' el 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 



562 THE JEWISH QUARTERLY REVIEW 

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 the 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 Hr 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- 
'areka), who shall judge the people with just judgement 
(mishpat-sedeky (Deut. 16. 18). 

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 a 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 Yehudah (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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 563 

through all the ''are Yehudah 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 {shofetim) in the land, 
in all the 'arim 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 ymi. And the causes are 
thus classed : ben dam le-dam (homicide cases, whether 
murder or manslaughter) ; ben torah le-miswah, le-kukkim 
u-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 {ben dam le-dam) or any other cause {ben din 
le-din uben negci la-negd, dibre ribot), or any law, or an 
assault, any controversy in thy cities {biske'areka), arise 
and go up to the makom which JHVH thy God will choose 



564 THE JEWISH QUARTERLY REVIEW 

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 torah 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 (f>e-r:adon\ not 
heeding the Kohen 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 {dibre saddikim) 
(Exod. 23. 8). 

Do not oppress a ger ; ye know a gers life ; ye were 
yourselves ^^;'?V« in I'-gypt (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). 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 565 

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 i-ebuke 
him, nor fasten guilt upon him (19. 17). 

Nurse no vengeance or grudge, but love thy neighbour 
as thyself (19. 1 1). Do no unrighteousness in mishpat with 
respect to middah (measurement), to mishkal (weight), or to 
mesurah (content) (19. 35). 

Deuteronomy has several. 

Moses says : I charged your shofetim at that time : 
Hear both sides {shamod ben ahehem) and judge righteously 
{sedek) between them, ezrak orger (Israelite or non-Israelite) 
(Deut. I. 16). 

Do not respect persons in mishpat, 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 regardeth not persons nor taketh gifts {shohad) ; 
He deals mishpat for the fatherless and the widow, He loves 
\heger (Deut. 10. 17, 18). 

Shofetim and shoterim appoint thou in all thy cities 
{she'areka) which JHVH 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. i8-ao). 

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. 34. 16, 17). 



566 THE JEWISH QUARTERLY REVIEW 

If men have a controversy {rib) and bring it for judge- 
ment, the judges shall acquit the innocent {saddik) and 
convict the guilty (rashd) (Deut. 25. i). 

Arur he that taketh shohad to condemn to death one 
who was once acquitted (nak^ (Deut. 27. 35 ; cf. Exod. 33. 7). 

That the system so established was complete is mani- 
fest. The details in Lev. 19. '3,^ 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. 27. 25, and the deliberate disregard of 
the decision of the supreme court was declared a capital 
offence in Deut. 17. 13. 

With the establishment of this system the whole 
machinery of sanctuary, of separated city, of ^are miklat, 
of gdel ha-dam, as well as the judicial functions of the 
zikne ka-'ir, of the several cities and of the 'Edak, were 
swept away, and kofer fell into oblivion. 

The great question of murder or manslaughter {ben dam 
le-dam) was tried in every '«> 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 sui-vivals 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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 567 

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 presei-ved their 
names. No one reads them. In this legal essay, however, 
they deserve to be repeated. 

The princes {sarim) 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. a, 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 Torah, 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. 

VOL. V. P p 



568 THE JEWISH QUARTERLY REVIEW 

In Canaanite law the presence of the accused was not 
necessary. The zi^ne 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. 

TJhese features of Canaanite law are inferred from the 
energetic opposition to them in the Tor ah. That the old 
law permitted the trial of a person in his absence, appears 
from the demand of the anshe ha-ir 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. %%. ai). 

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). 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 569 

' 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 ka-'am' (Deut. 17. 

6, 1). 

'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 ai. 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- 
baz, he did so with two witnesses (Isa. 8. a). Jeremiah 
called in subscribing witnesses to a deed (Jer. 3a. 10, ia)> 
and in his prayer afterwards he refers this fact to the express 
command of JHVH : Thou didst say to me, O 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 

r p a 



570 THE JEWISH QUARTERLY REVIEW 

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 fyc\x\octv\t\ 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. 23. 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 ttaki (acquitted of murder). 

Indeed, the word naki very often means to be freed 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 571 

from something, in contrast with the idea of having been 
entirely free from any connexion with it. 

If Abraham's messenger should do his errand and 
others cause it to fail, he shall be naki (freed, acquitted) 
of his obligation (Gen. 24. 41). And the word is used in 
a like sense in Joshua a. 17-20. If a man's ox gore a man 
to death, his owner shall be naH (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, rashci, hisdik, hirshid, and nikkah. Here 
are some of them : i Kings 8. 32 ; 2Chron. 6. 23; Exod. 21. 
28 ; 22. 8 ; 23. 8 ; Deut. 25. i, 2 ; Isa. 5. 23 ; 2 Sam. 14. 9 • 
15. 4 ; Exod. ao. 7 ; Deut. 5. 1 1 ; 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 talioniSi 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 



572 THE JEWISH QUARTERLY REVIEW 

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 ; 
3 Kings 14. 6 ; a Chron. a5. 4). 

Ezekiel, too, incidentally refers to the subject. He is 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 573 

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 eveiy 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 his 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. 



574 THE JEWISH QUARTERLY REVIEW 

And in his peroration he urges them to make for them- 
selves a new heart and a new spirit, and Israel will revive 
(Ezek. 1 8. 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 
(36. 33, 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 (37. 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. Fii-st- 
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. 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 575 

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. 1 16, 319, 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 either 
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. 19a). 

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, 2x3, 220, 233). 

Another noticeable fact is that while assaults without 
evil consequences are punished if committed on gentlemen 
or freedmen (Sees. 202, 203, 304), there is nothing said about 



576 THE JEWISH QUARTERLY REVIEW 

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 may 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 looo 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. 31. 20, 21, a6, 27, 3a is an important little slave- 
code. It declares as a principle that the slave is the 
master's property (kaspo hu) (31. 21), and then proceeds to 
enact exceptions which destroy the rule. 
They are as follows : 
Exod. 31. 30. 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 yomayifit), lo yukkam (Authorized Ver- 
sion : he shall not be punished), for he is his money 
(H kaspo kit). 
Exod. 31. 36. 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. 31. 37. 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. 31. 33. If a goring ox push (to death) a male 
slave {'ebed) or a female slave {amah), the owner of 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 577 

the OX shall pay unto the owner of the slave thii'ty 
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, nakom yinnakem, 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, wergild), 
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 



578 THE JEWISH QUARTERLY REVIEW 

Egypt, out of the house of slavery (pet 'abadim) 
(Exod. 13. 3, T4 ; ao, 3 ; 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. a6. 13). 

Thou shalt say unto thy son : We were Pharaoh's 
slaves (abadim) in Egypt, and JHVH brought us out 
of Egypt with a mighty hand (Deut. 6. ai ; 7. 8). 

Lest thine heart be lifted up, and thou forget 
JHVH, thy Elohim, 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 (ic)). 

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 eveiy 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 {deror) 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) (ai. a). At this 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 579 

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 ezrah by the device of a voluntary contract. 
A form of procedure was invented (ax. 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. 



580 THE JEWISH QUARTERLY REVIEW 

The terms nefesh, ish, adam, red (man, neighbour) took on 
a new meaning (Gen. 9. 56 ; Exod. 31. la ; Lev. 24. 17, 
11 ; Num. 35. 30 ; Deut. 19. 1 1 ; Josh. 30. 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 aist 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 ; 3 Sam. 
7. 14). No danger was apprehended from it. 'If thou 
beatest him with the shebet, he will not die' (Prov. 33. 13). 
Parents were admonished to use it in correcting the faults 
of their children (Prov. 13. 34; 32. 15; 23. 13 ; 39. 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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 581 

reasonable presumption was to ascribe the death to his 
constitutional weakness. And it is this presumption which 
is embodied in the aist 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 ebyonhn 
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. 30) 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. 



582 THE JEWISH QUARTERLY REVIEW 

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 i-uling 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. 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 583 

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 
VOL. V. Q q 



584 THE JEWISH QUARTERLY REVIEW 

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. 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 585 

The Hammurabi Code shows us Babylonia in the 
i-etaliation stage, from which it is scarcely beginning to 
emerge. It has not yet made homicide the affair of the 
state. Evidently the lex talionis 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. 19a), 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 

Qqa 



586 THE JEWISH QUARTERLY REVIEW 

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 retah'ation 
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 ai. 
Here are text and context : 

Exod. ai. aa. 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. 

a I. a3. And if any mischief follow, then thou shalt 
give life for life {nefesh tahat nefesh). 

ai. 2.4. Eye for eye, tooth for tooth, hand for hand, 
foot for foot. 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 587 

7,1. 35. Burning for burning, wound for wound, stripe 
for stripe. 

The Deuteronomy version is contained in tlie 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 (nefesh 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 S/tem, the decision and the law promulgated thereupon, 
that one guilty of that offence must be stoned to death 
by the 'Edak, and that the ger is just as amenable to this 
law as the ezrah. 

24. 17. He that kiileth any man shall be put to death. 

24. 18. He that kiileth a beast shall make it good 
{yeshallemennah), beast for beast [nefesh tahat nefesh). 

24. J 9. 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 kiileth a beast shall make it good 
(yeshallemennah) and he that kiileth a man shall be put 
to death. 



588 THE JEWISH QUARTERLY REVIEW 

24. 22. Ye shall have one mishpat for ger as for esrah. 
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. 2a). 

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 sarak 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. 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 589 

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. ai. ao). 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 ai'e 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 



59° THE JEWISH QUARTERLY REVIEW 

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) (yeshallemennah) 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 
nefesh 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 yeshallemennah with nefesh tahat nefesh. 
So read we have simply the same law as in Exodus 31. aa, 
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. 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 591 

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. ai. aa-5). The Hebrew law of assault and battery 
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. 309-14). Five of these provide 
for the payment of compensation only, the sixth (Sec. aio) 
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 sikne 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 35. 11, la, 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. 19a, 193, 194, 
195, 196, 197, 200, 305, 318, 336, 353, and 383). 



592 THE JEWISH QUARTERLY REVIEW 

When we find obsolete Canaanite 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. i2-a6. 
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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 593 

know them not, teach them. And whoever will not do 
the law of thy God and the law of the King, let judgement 
{dinah) be executed speedily upon him, whether for death 
{le-mot), for banishment {liskroskt), for amercement of 
goods (Idanash 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 shofetim we-shoterim (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. 31. 13). 

Karet: (Gen, 17. 14; Exod. 13. 15, 19; 30. 0,0,, 38; 
31. 14, 15 ; Lev. 7. ao, 31, 35, 37; 17. 4, 9, 14; 18. 29; 
19- 5-8, 13. 20 ; 30. 5, 17, 18 ; 33. 3 ; Num. 9. 13 ; 15. 30, 31 ; 
19. 13, 30). 

Amercement: (Exod. 31. 19). 

Enslavement : (Exod. 33. 3). 

Scourging: (Deut. 33. 18; 35. 2, 3; Lev. 19. 30). 

Nakom yinnakem : (Exod. 31. 3o). 

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 



594 THE JEWISH QUARTERLY REVIEW 

the man who flouted the celebration of the Exodus 
(Exod. 13. 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 olshelamim offerings while unclean (Lev. 7. 30, 31) ; 
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. 17. 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. 1 9. 5-8) ; committing 
certain improprieties (Lev. 30. 1 8) ; eating of the kodashim 
while unclean (Lev. 33. 3) ; failing to purify one's self when 
unclean (Num. 19. 13, 30). 

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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 595 

on the Sabbath incurs the penalty of karet ; in the latter, 
the penalty is death. This, however, wan-ants 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. 33-6 
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 nakom yinnakeni of 
Exod. 31. 20. 

These woi'ds 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 



596 THE JEWISH QUARTERLY REVIEW 

certain offences. For murder, death (ai. 12); for smiting 
a parent, death (ai. 16); for cui'sing a pai'ent, death (ai. 17) ; 
for injuring a man in a quarrel, compensation (ai. 19) ; for 
smiting a slave with a rod which produces death, nakom 
yinnakem (21. 30) ; for producing miscarriage, punitive 
damages (anosk yeanesh) (a 1 . 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 x6. 28) Samson uses it to mean 
the slaughter of a multitude. In a 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. '>fi). By Ezekiel it is used in a similar sense (Ezek. 
35. 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 5a 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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 597 

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 ku) (Exod. ai. ai). It and the lex talionis maxim, 
which follows hard upon it (21. 23-5), are 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. 22- 18). And to this 
effect writes Josephus {Ant., Book 4, ch. 8, Sec. ai) : 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- 



598 THE JEWISH QUARTERLY REVIEW 

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 (32. a, 8, la ; 33. 11 ; 
37. ai ; 38. 6, 1 3, a8 ; 39. 14, 15) ; and Nehemiah (3. a5 ; la. 39). 

2. Masger is used by Isaiah (24. aa ; 4a. 7) ; and by the 
Psalmist (14a. 8). 

3. Bet ha-pekudot is used by Jeremiah (5a. 11). 

4. Bet ka-hor is used in Exodus (la. %<^ ; and by 
Jeremiah (37. 16). 

The variant form bor is used by Isaiah (24. aa) ; 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 {yanus) to the bor ; let no man 

stay him. 

5. Mishmar is used in Genesis (40. 3, 4, 7 ; 41. 10 ; 
42. 17, 19)5 in Leviticus (a4. 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, a3 ; 

40. 3, 5)- 

7. Bet ha-asirim (M.T. asurim) is used in Judges 
(16. ai, 25). 

The variant form bet ha-esur occurs in Jeremiah 
(37. 15), and the form bet ha-surim in Koheleth (4. 14). 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 599 

8. Bei ka-kele' occurs ini Kings aa. 27 ; a Chron. 18.2,6: 
Put this man in prison (dei ha-keW) and feed him on 
bread and water. And Jeremiah uses it (37. 1.5, 18). 

The variant form bet ha-keli (M.T. bet ha-kelu') occurs 
in Jeremiah 37. 4 ; 5a. 31 ; while the form bet-kele' is used 
in a Kings (17. 4 ; 25. 27), and in Isaiah (4a. 7) : 'To open 
blind eyes, to bring the prisoner {assir) from the masger, 
the dwellers in darkness {yoshebe hoshek) 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 {ro'ek) put him into the bet ha-mahpeket (prison- 
house) (a 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. ao. a). 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 meshiiggct (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 {ewit) 
and the inspired man {ish ha-ruah) a madman {meshugga'). 
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- 
VOL. V. R r 



6oo THE JEWISH QUARTERLY REVIEW 

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 (a 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 sinnor 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 ' (^iwer u-piseah lo yabo el-ha-bayit : 3 Sam. 5. 8 ; 
cp. Lev. a I. 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-asuppim (1 Chron. 36. 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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 6oi 

in which asaph means ' to imprison '. Joseph put his 
brothers (wa-ye'esopk) 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 {we-ussepku asephah 
assir 'al-bor, tve-suggeru 'al-masger) (Isa. 24. aa). 

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 
{skomerim ha-sobebim ba-ir), who arrested her (mesduni). 
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 mascC, 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 mose'im 
wa-yimseu (Num. 15. 32, ^'^. 

The booty acquired in war is masd (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). 

R r 2 



602 THE JEWISH QUARTERLY REVIEW 

They caught (wayimseu) an Egyptian and brought him 
to David (i Sam. 30. 11). 

Was Israel caught {nimsd) among thieves ? (Jer. 48. 27). 

I will surrender (inamsi) 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 33. 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 
ka-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 yeheshic) 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 yoshebim 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 603 

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. 37 ; Isa. 36. 12). 

We may, therefore, fairly conclude that the wall of 
Jerusalem had a police station to which the shomerim 
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. 3a. 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 wei-e 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 makom, 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 



604 THE JEWISH QUARTERLY REVIEW 

analogous modei-n institutions. That the separated city 
of Deuteronomy and the 'ir miklat of Numbers, which 
succeeded the makom, 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 go'el ha-dam and the Hr miklat both ceased by 
the time of Jehoshaphat. Shofetim and shoterim, federal 
appointees, were placed in each canton ('«>), 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 moi'e 
the Proverb (Prov. a8. 17) : 

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 (la. 39), 
by Isaiah (34.23), 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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 605 

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 (jni-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 
fi'om 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 : 



6o6 THE JEWISH QUARTERLY REVIEW 

' 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 % Scene a.) 
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 ineasure 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. ai. 29, 33). 
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 ; aa. 3, 17), 
as does Joel (4. (3). 1 9). This use has even become proverbial 
(Prov. 1. 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 ; 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 607 

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 Eli. 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. icao 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 'arim (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 
nebtim, agents of the central government, visited the 



6o8 THE JEWISH QUARTERLY REVIEW 

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 was 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 
least, 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, 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 609 

considerable. Moreover, there are certain Canaanite 
admixtures in the Torah, which have already 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 ci-ime 
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 



6lO THE JEWISH QUARTERLY REVIEW 

sought sanctuary in a makom, probably the capital city of 
his ^ir, though there is reason to believe that a makom in 
any other 'ir would have availed as a safe place of refuge. 
From this vantage-point the bargaining was conducted, 
the makom-^Yiest 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 makom-priest 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 conilict. 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 'tr 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 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 6ll 

guilty man could escape by its means. If a murderer, he 
must die ; if a manslayer, he must suffer segregation. 
Money could not buy ofif either penalty. 

The Canaanite law and the Hebrew law were thus in 
crass opposition. Use and wont are powerful forces. 
The ziktte 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 nebiim) 
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 (shalom wa-sheket) in Israel 
(i Chron. aa. 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 makom-^nest, 
an indifferent or perhaps friendly sikne ha-ir council, and 
a go'el keener for money than for blood, could easily 
manage to defeat the purpose of the government. 



6l2 THE JEWISH QUARTERLY REVIEW 

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 gdel ka-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 gdel ha-dam). 



ANCIENT HEBREW LAW OF HOMICIDE — SULZBERGER 613 

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 sikne 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 kofer by the roots. I have in a previous 
lecture described how he abolished the jurisdiction of the 
dknc 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 



6l4 THE JEWISH QUARTERLY REVIEW 

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.