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COMMENT AHJE S



ON THE



LAWS OF MOSES.



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BY THE LATE



MI



Sir JOHN DAVID MICHAELIS, K.P.S. F.R.S.

PROFESSOR OF PHILOSOPHY IN THE UNIVERSITY OF GOTTIKGEN.



CtatisIateTi from tfje Cerman,

BY ALEXANDER SMITH, D.D.

MINISTER OF CHAPEL OF GAIUOCH, ABERDEENSHIRE.

IN FOUR VOLUMES.
VOL. I.



Libera Veritas. — Michaelis' Motto,



LONDON :

vsiVirD FOR F. C. AND J. RIV1NGTON, 62, ST. PAUl/s CHURCH-YARD;
AND LONGMAN, HURST, REES, OP.ME, AND BROWV,
PATERNOSTER- ROW.
AND A. BROWN & CO. ABERDEEN'.

1814.



D. Chalmers & Co.,
Priulen, Aberdeen. '



THE

TRANSLATOR'S PREFACE,



_L he " Mosaisches Recht" of the learned Micha.elis 9
of which a Translation is, with all the diffidence be-
coming a first attempt, here presented to the public,
was originally published at Frankfort on the Mayn,
in six parts, or volumes, between the years 1770 and
1775; and it appears, from the list of the author's
works annexed to Professor Hassencamp' s Collection
of Memoirs relative to his life and writings, (for a
copy of which Collection the translator is indebted
to the friendship of Sir Joseph Banks,*) that a second
edition of the first Jive * parts was completed between
1775 and 1780, and that the work had, before the
year 1793, been translated into Dutch and Danish.

a 2

* As the sixth, part contains, besides the Essay on Punishments,
which forms its preface, only a few of the concluding Articles of the
work, (the latter half of it being occupied with two enormous in*
dexes of texts and matters,) the translator presumes, that it had not,
in consequence of any material improvements made by the author
before his death, in 1791, been found necessary to reprint it a^ si
second edition,



IV PREFACE.

From the time of his first appointment to a pro-
fessorship of philosophy at Gottingen, in the year
1746, Michaelis, already eminent as an Oriental
scholar, appears to have directed his chief attention
to the critical illustration of the sacred writings ; and
the unrivalled success with which he prosecuted this
most important branch of theology, has been univer-
sally acknowledged in this country, since his valuable
Introduction to the New Testament, rendered still more
valuable by the notes and chastenings of Dr. Marsh,
has become accessible to English readers, by the ele-
gant translation of that learned theologian. — Michaelis
not only gave regular courses of lectures on Oriental
philology, Hebrew antiquities, exegetic theology, and
other Biblical subjects, but likewise published a num-
ber of particular Dissertations, relative to the most
important parts of the Mosaic polity, on the illustra-
tion of which he brought his great and varied erudi-
tion to bear, with the happiest effect. Of these Disser-
tations, it may here be proper to enumerate those con-
cerning the Mosaic Marriage Laws, the Punishment
of Homicide, the Laws of Usury, the Nomads of Pa-
lestine, the Hebrew Census, the Hebrew Months, the
Troglodytes of Mount Seir, the Oriental Mode of
Sheepbreeding, the Levirate Law, the Sabbatical Year,
the Law of Polygamy, the Value of the Shekel, the
Prices of Things previous to the Babylonish Captivity,



PREFACE. V

the Cherubim, the History of Glass among the He-
brews, the Nitre of the Hebrews, the Jewish Archi-
tecture in the time of Solomon, the Mosaic Laws
made with a view to attach the Israelites to Palestine,
the Arguments for the Immortality of the Soul dedu-
cible from the Mosaic Writings, &c. &c. — because the
materials of most of these Dissertations being either
wrought into the present work, or frequently referred
to in the course of it, it may justly be considered as
a digest of the contents of a variety of treatises, now
scarcely to be found even in Germany, and of which,
but only one or two have ever made their appearance
in English*.

It appears from the dedication of this work to Dr.
Olaus Rabenius, professor of laws, and syndic of the
university of Upsal, that that gentleman, who resided
at Gottingen, in the year 1757, had formed an inti-
mate acquaintance with Michaelis, and had requested
him to favour him with a course of private lectures!

a 3

* In a volume published at London, in 1773, under the title of
Bowyer's Select Discourses, we find translations of the Dissertations on
the Hebrew Months, and the Sabbatical Year.

f In the original, it is a Privatiesimum ; a term which the transla-
tor is enabled, in some measure, to explain, from a catalogue, given
him by his friend Dr. Henderson of London, of the half-yearly
courses of prelections delivered in winter 1798, in the university :>i



VI PREFACE.

on select points of the Mosaic jurisprudence. Had it
not been for this circumstance, Michaelis says, he
would probably never have thought of drawing up
any particular treatise on the Mosaic law, but have
satisfied himself with offering occasional illustrations
of it, in the course of his philological and exegetical
prelections. — " But," adds he, " you, Sir, were then
" a Doctor Jims, and therefore, as you may believe
" without many assurances on my part, I considered
*' your request as conferring an honour upon me ;
" little thinking, however, that I was thus to enjoy
c< the honour of having, for my hearer, the person to
" whom the states of Sweden were one day to intrust
" the important task of drawing up a book of the na-
?* tional laws. You were, therefore, my first pupil, in
" this new subject of prelection ; and as I afterwards
" read the same course of lectures to some other per-
" sons, from the preparations thus made, arose not
tf only the plan, but, in part at least, the execution
c ' also of this work ; which I now thus restore to its

Leipzig ; from which it appears, that many of the professors give
three different courses of lectures, viz. publice, privatim, and privat-
issime. Thus, Car. Fred. Richter, Phil. Prof. Extr. publice binis
dicbus hora IX. Psalmos inde a LXXJII. initiunt f admits, explicabit ■,
privatim quat. dieb. hora I. in Jesauc Vaticinia commentabitur ; neque
iis deerit qui privatissime Hebraicam vel aliavi Orienlis Dialectum, se
duce, discere cupiant,



PREFACE. Vll

" original suggester. It is not very common to find
" such a connection subsisting between a book, and
" the person to whom it is dedicated.

" I can scarcely, however," continues he, " expect
" any reader, to whom my present work will prove so
M peculiarly interesting, as to the man to whom I
" now inscribe it. Others may indeed contemplate
** the Mosaic laws in those points of view which I
" have noticed in my Introductory Observations ;
" and I should hope, they will not find my remarks
" upon them altogether unworthy of their attention i
" but you, Sir, will regard them with the eye of an
" actual legislator, on whom his country has devolved
M the honourable duty of examining the archives of
" the state, and collecting statutes and decisions ; in
* order, thence, and from the laws already known, and
" become burdensome by their multitude, to prepare
** a new digest of national law, not merely for the in-
" struction of students, but for the use of the courts,
" You yourself have informed me, that the civil law
" of Moses has till very lately been a. jus subsidiarium
" in Sweden, and that a relic of this is even yet to
" be found in the oath taken by the judges ; and you
" have kindly allowed me to communicate to my read-
" ers, in your own words, this important fact reaped
" ing its use j which, to my countrymen at least, will
" probably be new j and although, as you youtseii

a 4



Vlll TIIEFACE.

'.? remark, it is now no longer cited in the Swedish
" courts, it is almost impossible that there should not
" still remain in the Swedish jurisprudence, many ves-
" tiges of its former authority.

" You will, besides, Sir, methinks, from the in-
" fluence of national character, be the more interested
'* in tracing the principles of the Israelitish constitu-
" tion, from that spirit of liberty, which it everywhere
" displays. For that people, to whose example the
" defenders of the divine and illimitable rights of
" kings have so often appealed, were not, on their first
" establishment, so much as to have kings at all ; and
" even when kings were afterwards appointed, it is
*' most certain, that they were by no means those un-
•' limited monarchs, whom the advocates of that doc-
" trine have wished to represent as ordained by God
** himself. For the Deity did not even specify what
(l degree of power the king of Israel was to enjoy ;
" but left this entirely to the judgment of the people,
" who were one day to chuse him ; because, in such a
" case, no universal rule, as to the public welfare,
" could be given, to suit all future ages ; since it might
* f at one time be expedient, that the power of the
" crown should be augmented, and at another, cir-
•' cumscribed. Nor can you, Sir, fail to admire the
" modesty and prudence of Mo?es, who, though a
" legislator commissioned by God himself, declined



PREFACE. IX

" to enact any eternal and immutable law respecting
" the constitution of the Israelitish state * ; and who
" also, though lie established a free republic, yet, well
" aware that no form of government applicable to all
" times and circumstances can be devised, because
" states, like all other things, grow old, and stand in
" need of alteration, allowed the appointment of a
«' king at a future period ; but not of an unlimited
" sovereign, without any check or counterpoise to his
" power."

Such is the account which Michaelis himself gives
of the origin and progress of this work. The transla-
tor has thought it right to give, in the above quota-
tion, the whole of the epistle dedicatory to Rabenius,
(which is dated December 23, 1769,) excepting only
the introductory and concluding compliments. The
extract of the letter from Rabenius, respecting the in-
formation alluded to, will be found at the end of this
volume. It appears, from the advertisement prefixed
by Michaelis to the second edition of the Mosaisches
Bccht. that this eminent civilian unfortunately died,
before the completion of the great work which his
country had entrusted to his charge.

* "What I had here in view, but could not, consistentlv with,
" propriety, explicitly mention in 17ot), the readier will now find,
" by referring to a note in the beginning of Art. L1V."



X PREFACE.

It may here be proper to observe, with regard to
the sources whence Michaelis drew his illustrations of
the Mosaic writings, that he had, from the very first,
not only most happily availed himself of the informa-
tion incidentally furnished by the most creditable tra-
vellers, who had previously visited the East, (in which
respect, he may fairly be considered as the precursor
of our learned Dr. Harmer,) but that he likewise pro-
jected the plan of sending a mission of Literati to
Egypt and Arabia, for the express purpose of investi-
gating every thing connected with the history, geo-
graphy, antiquities, natural productions, language, and
manners of those countries, that could serve to throw
any light upon holy writ. This plan he proposed to
Count Bernstorff, so early as the year 1756; who, en-
tering into it with a degree of eagerness and zeal,
which must immortalize him as an enlightened minis-
ter, lost no time in recommending it to his royal mas-
ter ; and it is not the least glorious trait of the reign
of Frederick the Fifth of Denmark, that he here heart-
ily seconded the views of his minister, engaged to de-
fray the whole expense of the undertaking, and ho-
noured its projector, by committing to his charge the
selection of the travellers, and the arrangement of the
plan in all its various details ; remunerating him hand-
somely for his zealous exertions on the occasion. —
How worth v Michaelis was of this trust, is sufficiently



PREFACE. XV

weak and untenable arguments, to which some authors
have resorted for this purpose, Michaelis uniformly
takes possession of ground impregnably strong, from
which, while he challenges the enemy to attack him,
and concedes to him every imaginable advantage, he
still defies him to effect his dislodgment*. The
translator, therefore, cannot help suspecting that
Dr. Geddcs's acquaintance with the work had been,
in every sense of the word, extremely partial ; and
he must also remark, that while, in both his transla-
tion and his critical notes, he has availed himself of
the labours of the learned professor, at least as largely
as he has chosen to acknowledge, he does not always
treat him with that candour and respect, which he had
a right to look for at his hands.

It appears from the Literary Correspondence of
Michaelis, that when Mr. Justamond was about to an-
nounce his translation of this work, a difficulty oc-
curred with respect to the choice of the title most
proper to be given it ; and that Michaelis himself,
who had, in his youth, been 18 months in England,
and was well acquainted with the English language,
had been consulted on this subject. The learned
Orientalist Dr. JVoide, who seems to have patronised

* In proof of this remark, the reader needs only to be referred ta
the perusal of some passages in Articles XIV., LXVI., CLXXIX ,
CCXLVIL, CCL., CCLXIII.



XVI niEFACE."

Mr. Justamond, in a very friendly manner, says, in
one of his letters to Michaelis, " I have given Mr. Jus*
" tamond the title for the Mosaisches Recht, as you
" have transmitted it ;" but unfortunately there is no
letter of Michaelis in his Collection, stating what that
title was. The literal translation of the original title
is, /. D. Michaelis' s Mosaic Law ; a title, under
which the present translator, before he knew any
thing of his predecessor's difficulty, did not conceive
that the work could, with much propriety, be intro-
duced to the English reader ; nor did he altogether
approve of that of Mosaical Jurisprudence, proposed
by Dr. Geddes. Both have a bold and quaint appear-
ance ; and neither of them fully intimates to the read-
er, what he has to expect in the work,

In this embarrassment, therefore, as he could not
now resort for advice to the author himself, he very
naturally had recourse to Dr. Marsh, who may justly
be termed his legitimate representative ; and it gave
him some satisfaction to find, that both he, and
Dr. Adam Clarke, to whom also he had mentioned
the difficulty in question, concurred in thinking the
title of Commentaries on (lie Laws of Moses, (which the
analogy of the work to that of Blackstonc had sug-
gested, and led him to propose,) at any rate preferable
to either of those already mentioned, and more likely
to convev to the reader a correct idea of its nature and



♦ PREFACE. XVll

object. He is not sure, after all, whether the Spirit of
the Mosaic Laxcs, as indicative of a resemblance to
the celebrated work of Montesquieu, would not have
been a more suitable title than any of the three.

The great object of Michaelis in this work is to in-
vestigate and illustrate the philosophy of the Mosaic
Laws ; to shew their wonderful adaptation in every
respect to the very peculiar circumstances in which
the people, to whom they were given, had been
placed by providence ; and, while he takes every oppor-
tunity of establishing the claims of Moses to the cha-
racter of an ambassador from heaven, to inculcate
upon human legislators the important lesson of study-
ing those particulars respecting the natural and po-
litical situation, the ideas and prejudices, the manners
and customs, of their countrymen ; by attention to
which alone, they can ever hope to make them vir-
tuous, prosperous, and happy.

But here, perhaps, the translator cannot do greater
justice to the views and merits of the author, than by
quoting those passages of Eichhorn's Memoir of his
Literary Character, in which he describes the excel-
lencies of the present work, and apologises for its de-
fects. " Already well versed in historical and statis-
" tical knowledge, Michaelis had been led to turn his
H attention to political philosophy, first by his long
" residence in England, and afterwards by the exam-
" pie of his learned cotemporaries in Germany, who

vol. i, b



SV111 PREFACE,

" had happily excited a spirit for statistical and poli-
■■ tical inquiries among their countrymen, by succeed-
" ing in their endeavours to establish the study of
" these subjects as a regular branch of university
" education. It was altogether in the spirit of Mi-
" chaelis to keep pace with his cotemporaries in this
s( new and favourite pursuit ; and he very soon began
" to apply it to its noblest and most valuable use, by
-' making it subservient to the illustration of his own
" more immediate department of science, while yet
£C no other investigator of ancient learning had ever
" conceived any such idea. The day of the Mosaisches
" Itccht had thus already begun to dawn, in his Trea-
" tise on the Mosaic Marriage Laws ; for although
" the plan of that treatise was contrived so much on
" the theological principles of the Canon law, that po-
t( litical Esprits foists might have objected to it, still
" as it led him to pursue the idea he had struck out.,
" it served him at least as a preparatory ground-work
" for his future labours ; and accordingly we find,
" that he proceeded from this partial inquiry, to the
" consideration of the subject at large, and illustrated,
«' in the style of Montesquieu, the legislative and po-
*' litical constitution of the Hebrews in all its parts.
"The spirit of philosophical speculation now entered,
" as it were, into an amicable contest with that of
" statistical, political, and antiquarian research ; and
** thus gave birth to a work, before which every prior



PREFACE. XlX

" attempt of antiquarians and politicians vanishes like
" a shadow ; — a work truly original, and to which we
" have scarcely any thing on the subject of any go-
" vernment ancient or modern, that is worthy to be
" compared. In all preceding treatises on the sub-
" ject, every thing had been jumbled together in the
" most heterogeneous manner ; ancient laws and in-
" stitutions, mingled with modern ; ordinances truly
" Mosaic, confounded with those of later times, as in-
" troduced, reformed, or, at least, altered, by the Per-
" sians, Greeks, or Romans j and the real statutes of
" Moses exchanged for mere Rabbinical regulations,
" originating either in excessive scrupulosity, or silly
" misconception. In this state of things, and while,
" in their inquiries and speculations, authors on this
{c subject betrayed only their credulity, and ignorance
M of political science, Michaelis made his appearance.
" In conducting his work, he examined the sources
,f of information with all the aid of his historical skill,
" and philosophical discrimination, and thus gave the
" subject an interest, which it could never have com-
" manded, had he confined his attention to the mere
" illustration of the Mosaic constitution alone. For,
" those materials of that constitution, which every
" author before him had regarded with indifference,-,
" as mere matters of antiquarian speculation, he ex-
" hibited in a political point of view ; endeavouring
*' to penetrate into the nature and origin of all its

b2



SX PilEFACL.

" parts ; illustrating these from analogous circ'uni-
" stances in the laws and government of other na-
4< tions ; and, with those general remarks which he
" offered relative to the end and design of the several
11 statutes, combining others respecting their local or
** temporary expediency ; together with such farther
" observations as are calculated to interest, and even
" to instruct, the philosopher, the politician, the histo-
w rian, and the antiquarian, in their several pursuits.
" Before his time, in hearing lecturers on this subject,
" we heard only laborious collectors of antiquities \
" but in him we hear a philosopher, intimately ac-
" quainted with historical and political science. Here-
e t tofore we only listened to credulous and undiscern-
•"' ing compilers ; but now, to a truly critical inquirer.
•* Hitherto we have here been disgusted with insuffer-
" able political declamation ; but now we attend, with
11 delight, to the reasonings of true political philosophy.
*' And thus it is, that Michaelis has contrived to intro-
" duce most important instruction for statesmen into
" a subject, which before was only considered to be
'' worthy the attention of purblind, plodding, solitary
'.' antiquarians.' '

Such is the liberal and animated language, in which
Professor Eichhorn describes the work of his illustri-
ous colleague ; nor would the translator deem it neces-
sary to add any thing farther with respect either to its
design or execution, were it not that a regard to im-



PREFACE. 55 C1

partiality requires him also to observe, that the same
learned author, after remarking that this work left
little more to be xcishedfor on the subject, proceeds to
acknowledge, in that spirit of candour which strongly
indicates his desire to be considered as something
more respectable than a professed and undiscrimLnat-
ing panegyrist, that Michaelis now and then appears
to launch out into distant regions and ages, and
to speculate upon effects, which Moses, in the cir-
cumstances under which he acted, could hardly have
had iu view ; and that, on some occasions, we rind
him building political castles in the air, on so slight a
foundation, that a breath of historical criticism is suf-
ficient to level them with the ground. " Was not this,
" however,'* adds he, " altogether according to the
" nature of the human mind ; and precisely what was
" to be expected from a writer, who wished to bring
•' into notice and repute, a science previously dis-
" graced by the miserable treatment it had received ;
" and in lieu of the dull langour of declining old
" age, to reanimate it with the vital spirit of youth
w and beauty."

The translator most readily owns, that he had not
proceeded far in the first perusal of his original, before
he perceived that the author, valuable as his observa-
tions on every topic were, had not only fallen into
some mistakes which required to be corrected, but
also indulged himself occasionally in a latitude of spe-

b3



TXU PREFACE,

culation and conjecture, which, with all his ingenuity
and learning, could hardly be admitted, and seemed
to demand the application of somewhat of that pre-
cautionary chastening, which Dr. Marsh has so judi-
ciously applied to the Introduction to the New Testa-
ment. For though, in general, a translator is not
considered as bound to vindicate, or as accountable
for, every thing objectionable in his original, yet in a
work of this nature, where the translator is a clergy-
man, and such things happen to be introduced, it is
naturally to be expected, that he will, at any rate,
enter his caveat against the imputation of either ap-
proving them, or of not being aware of the necessity
of counteracting their effects.

For this reason alone then, not to mention any more,
it was the translator's wish and intention to have ac-
companied his labours with a series of corrective as
well as illustrative notes j but the utter impossibility,
after inquiries in which he was most powerfully assist-
ed, of procuring either in Britain, or from abroad, in
the obstructed state of literary intercourse with the
continent, a proper collection of the works of
Michaelis, and the other books necessary to be con-
sulted for such a purpose, obliged him at last to
relinquish his intention. This he did with the less
reluctance, when he considered that the work, with-
out notes, would extend to four considerable volumes ;
and that, with all its faults, it was in itself "(to use the



PREFACE. XXlll

language of a judge, from whose verdict few would
think of appealing) sufficient to engage the attention of
the public ; and that were he now to translate it, he
would, without giving notes, be satisfied with merely ex-
hibiting the author in an English dress.

There was another object which the translator may
fcere be permitted to mention his having had in view,
when he first embarked in this work, and which,
partly at least, for the reasons now mentioned, he
likewise found it necessary to abandon ; and that was,
the prefixing to it a Memoir of the Life and Writings
of the Author, — a work which he has every reason to



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