Of the Expiation of an Untraced Murder

If a slain man be found in the open country and his slayer is not known the elders of the nearest town shall take a heifer not yet wrought with to an uncultivated valley with a stream and break its neck (Deuteronomy 21:1-4); and priests shall attend (Deuteronomy 21:5); and the elders, washing their hands over the heifer, shall testify that they neither shed this blood nor saw it shed, and pray for forgiveness, and the blood shall be forgiven and the guilt removed (Deuteronomy 21:6-9).—Peculiar to D, it opens and closes in the Sg. address and with D’s formulas (Deuteronomy 21:1; Deuteronomy 21:8-9); the latter also appear with the entrance of the priests (Deuteronomy 21:5). The rest has no trace of the direct address (except in the doubtful 3a) nor of D’s formulas. Note, too, in the opening of Deuteronomy 21:9, how emphatically the return to the direct address is made by a variation—and thou—of the formula with which D closes similar laws; as if he felt some such junction were needed between what he had been quoting and his own addition. All this suggests that D has incorporated, and rounded off, an older law or custom; and the suggestion is confirmed by the primitive character of that custom, the fact that it implies sacrifice (see on 3 f.) which, according to D, is valid only at the One Altar, and that the earlier authorities in Israel, the elders, perform this. That the law is found only in D points to its having been a local practice. That he altered any of the original details cannot be positively affirmed; but it is noteworthy that while the definition of the heifer and the place of its killing imply a sacrifice, and the running water may be held to mean that originally the animal’s blood was shed into it, there is now in the law no mention of its blood, but its neck is to be broken, as if it were not a regular sacrifice.

It is possible that Deuteronomy 21:2, with its reference to the judges, belongs not to the law quoted but to D; and very probable that both the elders in that v. and the whole of Deuteronomy 21:5 are additions later than D.—Steuern. assigns the bulk of the passage to the code of his Pl. author on the ground that elders are also mentioned in other passages which he assigns to that, e.g. Deuteronomy 19:11 f., and that his Sg. author does not know of the elders.

The principle of this law, that an untraced murder must be ritually expiated, and the associated principle that the community in which it happened are responsible till expiation has been offered, prevailed among the Semites as well as with other peoples. Ḫammurabi enjoins (§ 23) that if a highwayman has not been caught the man robbed shall swear what he has lost, and have this restored by the governor of the district in which the robbery took place; and (§ 24) that if a life has been lost the city or district governor shall pay 1 mina of silver to the deceased’s relatives. W. R. Smith points out that in Arabia when a man was found slain the people of the place had to swear they were not the murderers (Kinship and Marriage, etc., 263) and that in the Kitâb el-Aghani ix. 178, l. 25 ff. the responsibility for a homicide is thrown on the nearest homestead, dar (MS note quoted by Driver). Cp. Doughty Ar. Des., i. 176. I add a modern instance of communal responsibility which resembles the case in § 23 of Ḫammurabi’s Code. In 1901 when encamped at Banias, although we had the usual watchman given us by the village, one of our horses was stolen by night. The dragoman, without telling me, appealed to two soldiers from the garrison of Mejdel esh-Shems who were passing. They summoned to our camp the elders of the village who denied on oath that they had been guilty of the crime or knew the criminal. They were very respectable looking ancients and our Western instincts of justice were wounded by the proposal that the whole gang of them should at once be marched off ‘elbow-tight’ to the prison at Mejdel. They offered a substitute for the stolen horse, but when this arrived it proved to be a very inferior animal, and was refused. After 24 hours the missing beast was produced, and we went our way uncertain whether it had been stolen with the connivance of the elders or not; but thankful for the institution of communal responsibility.—Cp. Baldensperger, PEFQ, 1906, 14.

1. If one be found] So Deuteronomy 17:2; Deuteronomy 24:7, also Sg. passages.

which the Lord thy God is to give thee] see on Deuteronomy 19:14.

lying] Heb. falling but with perfect sense, fallen, cp. Numbers 24:4, Jdg 3:25; Jdg 5:27.

in the field] sadeh, as in Deuteronomy 22:25; Deuteronomy 22:27, in its earlier meaning (see on Deuteronomy 5:21), the wild uncultivated country, remote from habitations.

2. thy elders and thy judges] The combination is remarkable, and recent commentators take one or the other as secondary. Steuern. retains elders (see introd. note), but Berth. and Marti are right in taking this as editorial since D does not elsewhere speak of the elders of the whole nation as P does.

3. and it shall be, etc.] Lit. and it shall be as regards the city which … that the elders of that city shall take, etc. Similar construction in Deuteronomy 12:11, Deuteronomy 18:19.

an heifer of the herd] 1 Samuel 16:2, Genesis 15:9 (a three year old) for sacrifice.

which hath not been wrought with] Heifers were used for work, Jdg 14:18, Hosea 10:11, Jeremiah 50:11, but this one, destined for a sacred use, must not have been so profaned: cp. Deuteronomy 15:19, of firstlings, Numbers 19:2, of the red heifer.

4. the elders of that city] Luc. omits.

a valley with running water] i.e. with a perennial brook, cp. Amos 5:24 (and see Driver’s note here). The running water is usually explained as meant to carry off the blood, but no blood is mentioned; unless it was so in the original law (see introd. note). The primitive idea was rather the checking of a demon or of the spirit of the slain man. Cp. the belief in the preference of spirits for dry places (Luke 11:24) and their aversion to running water (in modern times that ghosts cannot cross bridges, e.g. Tam o’ Shanter).

neither plowed nor sown] therefore unprofaned by common use, and so meet for a solemn rite. Dillm. (after Ewald): ‘that the soaked-in blood of the beast, vicariously killed, may not hereafter be uncovered by the cultivation of the ground but rather washed away by the brook.’ See however, the previous note. Some object the impossibility of finding an uncultivated valley with a running stream, but there are many such.

shall break the heifer’s neck] The same procedure as J, Exodus 13:13; Exodus 34:20, enjoins for the firstling of an ass not redeemed; cp. Isaiah 66:3, of a dog. In these cases there does not appear to have been shedding of the blood such as took place in all sacrifices proper. This is singular if the killing of the heifer was a piaculum. In the original ceremony was it only conceived as a piece of sympathetic magic, symbolic of the execution of the murderer, and did D transform this into an expiation? Or, conversely, was the original ceremony a sacrifice, and did D, on his principle that sacrifice was valid only at the One Altar, reduce it to the level of the treatment of the firstling of an ass? In Leviticus 4:13-21 (P), the piaculum for an inadvertent sin of the whole congregation, it is also the elders who slay the victim.

5. the priests the sons of Levi shall come near] The same vb as of the priest in Deuteronomy 20:2, R.V. approach. The appearance of the priests is remarkable, for they have nothing else to do in the ceremony. They have been introduced, then, either by D or, since they are not designated by D’s usual title for them (the priests the Levites), by an editor who, under the later priestly conceptions, cannot imagine such a ceremony without them. The rest of the v. reads as though the insertor gave it as his reason for bringing them in. For the formulas of which it consists see on Deuteronomy 10:8, Deuteronomy 17:8; Deuteronomy 17:12, Deuteronomy 18:5.

6. wash their hands] thus disowning their own and their community’s guilt. Psalm 26:6; Psalm 73:13, Matthew 27:24.

over the heifer] As representing the murderer or the murder?

7. answer] testify, as in Deuteronomy 5:20 (9th Comm.), and Deuteronomy 19:16.

8. Forgive] the meaning of this technical term, kipper, is usually taken either from the Ar. form = to cover, or the Syr. = to wipe away, the latter being also its meaning in Assyr. (Zimmern in KAT3[144], 601, 650). See Driver’s note here.

[144] Die Keilinschriften und das AIte Testament, 3rd edition (1903), by H. Zimmern and H. Winckler.

whom thou hast redeemed] In the Hex. peculiar to D, see on Deuteronomy 7:8.

suffer] Heb. give, i.e. appoint, attach or impute.

thy people Israel] The guilt of such a crime affected not only the people of the commune where it was committed but all Israel (cp. Numbers 35:33). Was this idea in the original law, or added by D? Apparently D’s addition begins with the opening of the next v.

9. So shalt thou put away] Heb. and thou, thou shalt put away, an emphatic variation of the formula with which D usually closes similar laws (see Deuteronomy 13:5, (6), Deuteronomy 19:13, etc.), as if he only now resumed his own words.

when thou shalt do, etc.] To make the construction right we should prefix to this clause, the words that it may be well with thee. See Deuteronomy 6:18.

10. When thou goest forth, etc.] see on Deuteronomy 20:1. Read enemy (sing.) because of the following: and the Lord thy God delivereth him into thine hands (see on Deuteronomy 1:27); and thou takest captives from him (lit. capturest his captives).

10–14. Of Marriage with a Captive of War

If a woman taken in war is desired for a wife (Deuteronomy 21:11 f.), she may be brought home, but the marriage shall not take place till she has shaved her hair, pared her nails, put away her former garments, and mourned her parents for a month (Deuteronomy 21:12 f.). If her husband’s love for her fades he may let her go out free (Deuteronomy 21:14).—In the Sg. address, with no feature incompatible with D’s authorship, and impressed by his spirit both of humanity and of caution against infection by foreign idolatries. Yet in the light of Deuteronomy 7:3, forbidding marriage with the people of the land, and Deuteronomy 20:16 commanding that in war they shall all be put to death, this law can only refer to captives taken in distant wars, Deuteronomy 20:10-15. See further general note, introd. to ch. 20. There is no parallel in any other codes.

Mohammed permitted a female captive (though previously married) to become at once the concubine of her captor. But this is not Arab custom. ‘Women are not taken captive in the Arabian warfare, though many times a poor valiant man might come by a fair wife thus without his spending for bride-money’ (Doughty Ar. Des. ii. 148).

11. the captives] Sam. his.

hast a desire unto her] Heb. ḥashaḳ, see on Deuteronomy 7:7.

and wouldest take her] So Sam. LXX. Heb. omits her.

12. to thine house] Lit. to the midst of thy household.

shave her head, and pare her nails] Heb. make or dress her nails (2 Samuel 19:24 with feet and beard). Berth. thinks these duties are part of the following mourning, the cutting off of hair being a mourning rite (Deuteronomy 14:1, Ethn. Ber., 427). But because she has to do this at once and at the same time put off the raiment she was taken in, it is more probable that all three are required as elements in her purification from heathenism (so most commentators); see above, pp. 243 f. On similar customs among Arabs, cp. W. R. Smith, Kinship, etc., 178, OTJC2, 368, Wellh., Reste Arab. Heid. 156.

13. a full month] Lit. a month of days, a usual period of mourning, Deuteronomy 34:8, Numbers 20:29, etc., cp. Genesis 50:3. Contrast Mohammed’s practice above.

be her husband] Heb. a ba‘al to her; so Deuteronomy 24:1, R.V. marrieth.

14. let her go] Lit. dismiss, the term for divorce, the right of which was the husband’s alone, but in this case is qualified by the following.

whither she will] Lit. according to her desire; therefore rather as she will, as full mistress of herself; cp. Jeremiah 34:16 of freed slaves.

thou shalt not sell her, etc.] So in E, Exodus 21:8, of the married slave whom her husband wishes to divorce.

deal with her as a slave] Only here and Deuteronomy 24:7. Although the Ar. forms of the root imply rancour or malice, the Heb. vb seems only to mean deal with her as her owner (Driver, ‘play the master over her’).

because, etc.] Cp Deuteronomy 22:24; Deuteronomy 22:29.

15. If a man have two wives] Cp. Jacob, Genesis 29:16 ff., Elkanah, 1 Samuel 1:2.

hated] The extreme case, but covering others such as Jacob’s Genesis 29:30 f.

15–17. Of the right of the Firstborn

If a man have two sons by different wives, one loved and one hated, and his firstborn is the son of the latter, he must not give the firstborn’s double portion to the son of the favourite.—Not in the direct address nor with any of D’s characteristic phrases; possibly therefore a previous law adopted by D, but hardly an ancient one, as it vetoes what was at least the occasional practice in early Israel. Like others it opens by putting a definite case (if there be a man, etc., cp. Deuteronomy 21:18; Deuteronomy 21:22, Deuteronomy 22:2; Deuteronomy 22:6; Deuteronomy 22:13, etc.), it covers this alone, and hence is incomplete. We do not learn, e.g., whether the double portion included the family lands (Stade, Gesch. i. 392, and Buhl, Soc. Verhältn. d. Isr. 55 n. 2, think not) nor anything as to the children of concubines (cp. E, Genesis 21:10 f.).

That in early Israel the firstborn had special rights, arising probably from the sacredness attached to all firstbirths (see Exodus 13:12), is proved by the term bekorah, birthright (J, Genesis 25:34) as well as by its metaphorical application to Israel (J, Exodus 4:22, cp. Jeremiah 31:9). That the firstborn’s portion was a double one is implied the spiritual use of the phrase, in 2 Kings 2:9 (cp. Zechariah 13:8), Yet these rights were subject to the patria potestas and a firstborn might be disinherited by his father in favour of a younger son, either as in Reuben’s case because of misconduct, or as in the succession to David through the influence of a favourite wife (Genesis 49:2 ff., cp. 1 Chronicles 5:1; 1 Kings 1:2; cp. the power of a father’s blessing even when obtained by fraud, Genesis 27, or of a grandfather’s, Genesis 48). The former case is dealt with more rigorously by the next law of D, the latter is absolutely forbidden in this law. Together the two laws illustrate D’s mingled severity and equity. For later legislation on inheritance see P, Numbers 27:1-10; Num. 27:36.

On the rights of inheritance in Assyria and Babylonia see Johns, op. cit. ch. 16. He refers to instances of the division of property among brothers with reservations in favour of other members of the family, and certain powers of allotment by the eldest son, and quotes (p. 42) very early laws by which parents might disinherit their sons. This is also sanctioned, but only upon repeated misconduct, by Ḫammurabi, §§ 168 f., which legalise a father’s gifts to a favourite son over and above his equal share with his brothers in his father’s estate (§ 165), and equal rights to the children of a bondmaid with those of a wife if the father have acknowledged them as his sons (§ 170). See also §§ 28, 38 f. and a late law (Johns, p. 71) assigning one-third of a man’s estate to the children of a second marriage. On the Arab laws of inheritance see W. R. Smith, Kinship etc., 53 etc.

16. in the day that he causeth his sons to inherit] When he makes his will, Genesis 24:36; Genesis 25:5; cp. 2 Samuel 17:23, 2 Kings 20:1.

before] in preference to (see on Deuteronomy 5:7), R.V. margin is improbable.

17. acknowledge] Grätz by adding one consonant reads, make him the first-born.

a double portion] Heb. mouth or mouthful, of two, only here and 2 Kings 2:9, Zechariah 13:8; cp. hand or handful, Genesis 43:34.

beginning of his strength] Genesis 49:3.

and his is the right of the firstborn] So some Heb. MSS, Sam. LXX, etc.

18. If a man have] See introd. to Deuteronomy 21:15-17.

stubborn and rebellious] Jeremiah 5:23, Psalm 78:8.

father or … mother] Mark the equality of the parents, as in the next v., the Fifth Comm. and in E, Exodus 21:15; Exodus 21:17; also in the Babylonian laws cited above.

chasten] see on Deuteronomy 8:5.

18–21. Of a Disobedient Son

If a man have a son, who, in spite of his parents’ rebuke, fails to obey them (Deuteronomy 21:18), they shall bring him forth to the gate, and state the case to the elders of the town (Deuteronomy 21:19 f.), and the townsmen shall stone him to death, so shall evil be put out of Israel and all take warning (21).—Except for the closing formula this law is not in the form of address to Israel, and the term for stoning is other than D’s. Therefore probably another of the laws incorporated by D.

The power of parents over their children (E, Exodus 21:7, Genesis 31:15), even to putting them to death, which prevailed in early Israel also to this degree (Genesis 38:24; cp. Buhl, Soc. Verkältn. d. Isr. 29), as among the Greeks and Romans, is here enforced and controlled by public authority. See further introd. to previous law. Cp. Deuteronomy 27:16; E, Exodus 21:15; Exodus 21:17, H, Leviticus 20:9 (death for smiting or cursing parents); Proverbs 30:17, Code of Ḫammurabi § 195, and two Sumerian laws cited by Johns, op. cit. p. 41. For Herod’s abuse of this law see Josephus, xvi. Antt. xi. 2.

19. lay hold] Deuteronomy 22:28; cp. Deuteronomy 9:17. Bring out, Deuteronomy 17:5, q.v., Deuteronomy 22:21; Deuteronomy 22:24. Elders of his city, see on Deuteronomy 19:12 and Deuteronomy 16:18. Gate of his place, as the local seat of judgement, Deuteronomy 22:15, Deuteronomy 25:7; cp. Ruth 4:1 f., Amos 5:10; Amos 5:12; Amos 5:15, Isaiah 29:21.

20. elders] Sam. LXX, men.

riotous liver] Better, prodigal, lit. one who lavishes or squanders, Proverbs 23:20 (with flesh, a glutton) and 21, parallel to drunkard as here; Deuteronomy 28:7 : a companion of prodigals shameth his father.

21. stone] Heb. ragam as in Ar.; only here in D, which elsewhere has saḳal, see on Deuteronomy 13:10 (11), but found in JE (Joshua 7:25), H (Leviticus 20:2; Leviticus 20:27) and P (Numbers 14:10, etc.).

put away, etc.] see on Deuteronomy 13:5 (6).

all Israel shall hear, etc.] see on Deuteronomy 13:11 (12); cp. Deuteronomy 17:13, Deuteronomy 19:20.

22 f. Of the Exposed Corpse of a Criminal

A corpse exposed after execution shall be buried before night; cursed of God it must not be left to defile the land. In the Sg. address and closing with a deuteronomic formula.

Hanging (or impalement? see below) was not the form of the criminal’s death but was subsequent to the execution and an aggravation of its dishonour. This is clear not only from Deuteronomy 21:22, but from Joshua 8:29; Joshua 10:26, 1 Samuel 31:10, 2 Samuel 4:12 and is perhaps intended also in Genesis 40:19 (and by consequence in Deuteronomy 21:22, Genesis 41:13). Compare the similar treatment of the corpses of traitors and other notorious criminals in Europe till within recent times. In early Israel bodies thus exposed were buried before night and under or behind great stones, as though finally to suppress and get rid of the spirit of the criminal, which otherwise would continue to haunt the neighbourhood. If that was the original idea, it is ignored by D and this other substituted, that the hanged thing was under God’s curse and unburied might infect His holy land with His wrath.

22. if a man, etc.] Cp. Deuteronomy 21:15; Deuteronomy 21:18; lit. if there be against a man a sin, a sentence (mishpaṭ), of death. This compound phrase seems a fusion of a sin of death, a capital sin, Deuteronomy 22:26, and a sentence of death, a capital charge, Deuteronomy 19:6. Or mishpaṭ is a gloss.

and thou hang him on a tree] Not necessarily tree but something wooden (see Deuteronomy 19:5), LXX ἐπὶ ξύλου. It may have been a stake or pole, Esther 7:9, EVV. gallows. Of the cross in Galatians 3:13. So also hang, LXX κρεμάσητε, may be both here and in passages cited above affix or impale, Esther 7:9, LXX σταμροῦν (but this was in Persia, for which cp. the ἀνασκολοπίζειν of Herod. i. 128). Impalement is implied in Ezra 6:11; and probably in 2Ma 15:35, Jdt 14:1, Lamentations 5:12. As their sculptures illustrate, Assyrians and Babylonians frequently impaled the bodies of their enemies.

23. for the thing hanged is accursed of God] lit. a curse of God. This was the meaning of such exposure of the corpse after execution. God’s wrath was heaped upon it; or it became doubly unclean and therefore terribly charged with infection to its surroundings. The LXX version of these words: κεκαταραμένος ὑπὸ θεοῦ πᾶς κρεμάμενος ἐπὶ ξύλου is quoted by Paul with a difference—ἐπικατάρατος πᾶς ὁ κρεμάμενος ἐπὶ ξύλου—in support of his statement that Christ was made a curse for us.

that thou defile not] In D only here and Deuteronomy 24:4, but the idea, differently expressed, is frequent.

giveth thee for an inheritance] Deuteronomy 15:4. see on Deuteronomy 4:21.