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2 This would be duly specified by a contract, as in the deed of
the second year of Nergal-sarezer, where a man's wife is taken into
partnership by her husband for as long a time as his brother is away
on his travels (Sayce, op. cit. t p. 130).



CHAP, vin LAND AND AGRICULTURE 187

restored to him on his return ( 30 sq.). Evidently
the right to hold the land depends upon the man's
ability to reclaim it, and the law finds an analogy in
the Mohammedan custom already referred to, where-
by waste land which has been taken and remains
uncultivated for three years is seized by the
authorities and given to another. 1 Finally, if the
estate has been alienated in the absence of the
ganger, constable, or tributary, it is restored to him
on his return (CH, 41). The true meaning of
this law is rather obscure. According to Johns
(Amer. Journ. Sem. Lang., 1903, p. 173 sq.\ it is
bartered (u-bi-iK) and exchanges (ni-ip-la-tim) have
been given, and the latter become the official's
property along with the estate (cp. 37, where the
buyer forfeits his money) ; Scheil and Winckler, on
the other hand, understand the estate to have been
fenced in, for which injury the holder is entitled to
receive compensation.

In Israel there were doubtless highly -placed
officials who held lands under the state, 2 and the

1 Kohler, Rechtsvergleich. Stud., p. 75 (citing Hidaya, p. 610 sq. ;
transl. Hamilton, second ed. by Grady, 1870). Similarly in old Mexico,
where every member of the community had a right to the usufruct
of the common lands in proportion to his status, the holder who
neglected his allotment for two years running was admonished, and
if in the third year he had not improved the soil, his lot was taken
from him and handed over to another tenant (Letourneau, Property -,
P- 131)-

2 Cp. i Sam. 8 14. After the capture of Jerusalem David appears
to have given estates in the neighbourhood to members of his family
and court (2 Sam. 13 23, Absalom at Baal-Hazor; 14 30, Joab ;
i Kings 2 26, Abiathar at Anathoth).



1 88 THE LAWS OF MOSES CHAP, vm

Chronicler even ascribes to David a system of
administration under which the royal fields and
flocks were tended by appointed officers (i Chron.
27 25-31), but analogies for laws similar to the above
in the Code are looked for in vain. On the other
hand, the disinclination to alienate landed property
was exceptionally strong in Israel, and custom had
given the near kinsman a clear right of pre-emption
and also of buying back (Jer. 32, Lev. 25). 1 The
land was a sacred possession ; it was Yahwe's, and
as such was to be held only by his people. In
Ezekiel's sketch of the restoration, crown -lands
presented by the " prince " to any of his officials
revert to the crown in the year of liberty ; only
gifts may be held and inherited to perpetuity (Ezek.
46 16-18 ; cp. CH, 38 sq.).

In Babylonia, perhaps the most prolific of Semitic
lands, agriculture flourished from the earliest times,
and every care was taken to ensure that the ground
should yield the richest harvests. Some valuable
particulars regarding the details of cultivation in
ancient Babylonia are preserved upon an old muti-
lated tablet and throw interesting light upon early
prevailing conditions, 2 and the kind of literature
already in existence at the time of the Code of
Hammurabi. From it we learn that the legal

1 Cp. Benzinger, EBi., "Law and Justice," 15. Doughty
(speaking of the Bedouin of Kheybar, Ar. Des. 2 116) remarks that
when a man has to sell his inheritance for any immediate purpose,
it is bought by his tribesmen and not by the negro tenants.

2 The so-called " Sumerian farming-laws," translated with notes
by G. Bertin in the Records of tJie Past^ second series, 3 91-101 (1890).



CHAP, vin LAND AND AGRICULTURE 189

tenure began in the sixth month with the drawing
up of a contract. The field is enclosed, hedged,
ploughed, and raked, " for every sixty measures of
grain the farmer takes eight measures." For a
" field of half," the labourer works under the
proprietor's overseers, whereas in a " field of
partnership," proprietor and tenant are on equal
footing, " man as man, house as house, seed as
seed." At harvest-time the master supplies " a
long cart " and a threshing-ox. Another column,
incomplete, gives in detail the duties of the tenant.
" He fences with sticks the ground to be ploughed,
he ploughs and rakes it, he waters it once and
twice, he fixes hooks for the pails for drawing
water." At harvest -time he takes his share as
arranged in the contract. The division ranges
from a third to a tenth, and mention is made of a
tithe for the palace. The gardener marks the limits
of the garden with boundary stones, 1 he plants date-
trees and waters the young plants. It would appear
that the tenure might cease at the end of the eighth
month : " at the time of drying the dates, at the
time of pulling up the palings, in order to quit him-
self he delivers to the lord of the plantation two-
thirds of the dates. He takes a fixed amount and
he sends in money the amount of the produce of
the date-trees." Finally, the tablet specifies the
other works which the tenant of a farm is bound to
perform. These comprise the strengthening of
doors and gates, and the building of a house for

1 Or, palings (Bertin).



1 9 o THE LAWS OF MOSES CHAP, vm

the servants, 1 whose wages he must pay " at the
time of the cessation of work," and if the house is
not properly constructed he is fined ten shekels.

Land was hired for a fixed amount, as specified
in the contract, or the tenant (trrtsu) 2 undertook to
give the owner a certain proportion of the yield.
The Code orders that the man who has taken a
field to cultivate (a-na ir-ri-su-tim u-sa-si-ma) and
has not caused it to produce corn shall be put to
account for his negligence and shall pay over to
the owner of the field (be -el ekli) corn like its
neighbour (ki-ma i-te-su; 42). It is estimated
that the field should have produced as much as
those in its immediate neighbourhood and the
cultivator is amerced to the extent of the amount
of their crops. The same ruling holds good, also,
if the man has left the field to itself, but he is under
a further obligation to hoe and harrow it before he
returns it to the owner ( 43). A piece of waste
land (KI-GAL) 3 that has been taken on hire for three
years, but has been neglected, must be hoed and
harrowed in the fourth year, and the tenant, when
he returns it to the owner of the field, must measure
out (i-ma-ad-da-ad) corn at the rate of ten GUR per

1 The stipulation that the hirer must build a house upon the
field is often found in old contracts (e.g. Meissner, op. tit. no.
75 sq.).

2 Post-Bibl. arts; see Pick, Assyrisches u. Talmudisches, p. 23.
Specimens of such contracts have been published in KB 4 41, 127 ;
Meissner, op. cit. nos. 72-77.

3 Unreclaimed or land out of cultivation (Johns, Amer. Journ.
Sem. Lang.) 1903, p. 96 sq.\






CHAP, vin LAND AND AGRICULTURE 191

CAN ( 44). 1 The first two laws thus apply to corn-
land which has not produced the average amount
of corn, or has been neglected, whilst the last deals
with unreclaimed land which three years' labour
was expected to bring into proper condition (cp.
CH, 30 above). The penalty in this case, it
would appear, consists not only of a specified pay-
ment of corn, but of an additional year's service by
the tenant. 2 If the cultivator (ir-ri-sum) has given
over (to another ?) the field to cultivation (eklu e-ri-
$a-am ik-ta-bi) the owner has no right to complain
since his field has been cultivated, and at the harvest
(i-na eburi) when all payments were made he
takes his corn according to his bonds (ri-ik-sa-ti-su).
The law ( 47) apparently refers to a field that has
been sublet, and a reason is given for the owner's
complaint which is not clear. 3

The law is not always severe upon the cultivator.
If a man has given his field to a cultivator in return
for its produce (bilti), and has received his share,
and a thunderstorm (ilu Adad) has ravaged the
field and destroyed the crop (bi~ib-bu-lum), the loss
falls upon the cultivator ( 45). If, however, the

1 One GUR of corn is worth one shekel of silver, and contains
300 KAJ it is properly a " camel-load " = 5 imir (ass-load), Peiser,
Skizze d. bab. Gesell. p. 22, n. The CAN is a land -measure of un-
certain extent.

2 Orelli, Gesetz Hammurabis, p. 60, finds in the three laws three
successive stages in the legislation.

3 as-sum i-na sa-at-tim mah-ri-tim ma-na-ha-ti-su la il-lu-u,
" because in the former year he did not set up his dwelling " (Johns),
did not go to his farm (Scheil), obtain sustenance (? Winckler).



i 9 2 THE LAWS OF MOSES CHAP, vm

owner has not received the produce of his field,
and the field is let for one-half or one-third, the
cultivator and the owner divide the corn that is left
in the field ( 46). In the former case, the cultivator
receives no compensation for the loss of his share
of the produce, whilst in the latter, the two share
proportionately according to the contract whatever
remains.

The laws relating to the gardener are analogous
to those for the farmer. The man who lets out a
plot of land to the gardener allows him four years in
which to plant and rear it, and in the fifth the
owner of the garden (be-el kiri) and the gardener
(NU kiri} share equally ( 60). The plot is divided
and each takes his own produce, and if the gardener
has allowed a portion of it to lie waste (ni-di-tum
i-zi-ib\ he must include that portion in his own
share ( 61). If- the gardener has not planted the
field as a garden, and it was corn-land, he must
measure out corn to the owner of the field "like its
neighbour" for the years in which it has been
neglected, and must put it in order before returning
it ( 62 ; cp. 43 sq.). If it was waste or unre-
claimed (eklu KI-KAL), he must set it in order and
measure out 10 GUR of corn for each CAN ( 63, cp.
above, 44). 1

Another small group of laws which also apply to
the gardener is imperfect owing to the erasure of

1 The payment is made sa sa-at-tim is-ti-a-at, "for one year"
(Winckler), not for all the years that it has been neglected (as in
62). Johns, however, has " for each year."



CHAP, vin LAND AND AGRICULTURE 193

five columns of the inscription. These do not
appear to refer to the planting of the garden, but to
the cultivation of one already planted. 1 Here, the
gardener is to receive one-third of the produce and
give two-thirds to the owner, and if through his
negligence the yield is small, he must measure it out
"like its neighbour" ( 64 sq.\ Finally, if a man
cuts down a tree (i-sa-am) without (the consent of)
the owner he must pay half a mina of silver ( 59).

The system of farming on such conditions
as these is prevalent. The Babylonian Talmud
assumes that when land is taken on lease the tenant
must do all that is in accordance with the custom of
the country (as specified in the contract) ; if he does
not cultivate it, he must pay in proportion according
to the amount the field should produce, and if the
produce is destroyed by some wide-spread disaster
(locusts, fire), a deduction may be made. 2 At
Kheybar, according to Doughty (Ar. Des. 2 114 sgq.),
the Bedouin are the land-owners and the villagers
husband the palms for half the produce ; they hold
half-rights which they may sell ; when necessary
they must plant new trees for which the owners
will compensate them. These holdings are quite

1 a-na ru-ku-bi-im, on the analogy of the Talmudic use of the
verb, is understood by Joh. Jeremias (p. 20, n. 3) to mean a grafting ;
Johns renders by " to farm."

2 B. Mes., 9 ; Pick, /. c. Cp. the specimen of a contract cited by
Vogelstein (pp. cit. p. 49, n. 15), where the tenant pays the expenses,
and gives the owner half the produce, and binds himself with the
following promise : " If I leave it waste and till it not, I shall pay
back according to the best." See below, p. 202, n. i.

13



i 9 4 THE LAWS OF MOSES CHAP, vm

distinct from the open lands which the villagers
possess in their own right. In Palestine the amount
taken by the owners varies. Some Bedouin pro-
prietors take one-fifth only, but the fellahin pay all
the expenses ; more commonly the proportion is
one-fourth and the land-owner provides the seed. 1

Of the agricultural laws of ancient Israel we
know but little, although all the evidence goes
to prove that there must have been numerous
customary usages in vogue. Canaan had been
under cultivation long before the Israelites entered,
and agriculture plays a very prominent part in the
history of the land. It is noteworthy that the
promises and threats associated with the observa-
tion of the Deuteronomic code are specifically
agricultural. They are as characteristic of Israel as
Hammurabi's Epilogue (chap. i. above) is of Baby-
lonia not that agriculture was practised to a less
extent in Babylonia, but in Israel it was the people's
life, and it left its mark upon the language and
sentiment to a degree that finds no parallel in the
commercial powers of the Tigris and Euphrates. 2

It is not until Deut. 19 14, 27 17 that it becomes
necessary to prohibit the removal of the neighbour's
landmark. The land-grabbing tendencies of the
rich and powerful was one of the curses of the
monarchy, and the numerous references to the

1 Post, PEFQ, 1891, p. 104; Jaussen, Revue Biblique, 1901,
p. 606.

2 A picture of later Jewish agriculture is presented by the writer
of the Letter of Arts teas, 107 sqq.






CHAP, vin LAND AND AGRICULTURE 195

offence in the later writings stand out in striking j
contrast to the silence of the Book of the Covenant. 1
The landmark (gebul) was scarcely an inscribed
stone similar to the Bab. kuduru (p. 183 above). In
modern times, when the same plot is divided and
shared by several in common, division is indicated
by a furrow of double width, or more generally by
stones which are placed at each end of the boundary
lines. 2 It is probable, therefore, that the Deutero-^
nomic law referred to the cases where land was
held in common, and not to the boundaries of
estates or properties which would naturally be of a
more permanent character. 3 The same offence was
condemned in Assyria, and among a list of sins
which a man might commit we meet with such
questions as : " Has he set up a false landmark, or
has he refused to set up a true landmark ? Has
he removed bound, border, or landmark ? " 4

Further, the modern Palestinian custom which
compels a man to sow on his strips of land the same
seed as the rest, in order that all may harvest at the

1 Hos. 5 10, Prov. 22 28, 23 ioa (where read " the landmark of the
widow," cp. 1625), Job 24 2.

2 Neil, Viet. Inst. p. 159^. ; Bergheim, PEFQ, 1894, p. 195 sq.
The modern name, according to the former, is takhem, " limits," the
abstract for the concrete as in the case of the Hebrew ggbiil.

3 Trees are sometimes planted at the present day to mark
permanent boundaries (cp. Gen. 2 1 33 ?), and the fellahm dig a hole
wherein are placed egg-shells and charcoal, which, as they say, never
disappear, and can always be dug up as evidence (Clermont-Ganneau,
Recueil d^Archeol. Orient. 5 331 ; 1903).

4 King, Babylonian Religion, p. 219; from a seventh -century
tablet.



196 THE LAWS OF MOSES CHAP, vm

same time, suggests an explanation of the precept
directed against sowing a field with two kinds of
seed (Lev. 19 19, Deut. 22 9).* The reason preferred
by the Deuteronomist is obscure, but it seems not
unlikely that he is only giving effect to a survival of
ancient custom by clothing it with what in his day
was deemed a plausible explanation. In like

manner it can scarcely be maintained that the in-
junction in Ex. 23 10 sq. (cp. Lev. 25 3 sq.) t that
each plot should lie fallow in the seventh year, was
originally based upon the institution of the seventh
day of rest. In later times, according to the
Mishnah, a field was divided into portions, of which
one half was sown in the first year and the second
half in the year following, or the whole field was
sown for a few years and then allowed to remain
fallow for a length of time. Experience naturally
taught the necessity of letting the ground rest, and
it was enforced by a law which based itself upon
motives of humanity. 2 Similarly, the law in Lev.
19 9, 2822, which exhorts the cultivator to leave the
corners of his field for the poor, is introduced solely
out of benevolent motives. A relic of an ancient
communistic life has already been suspected, 3 but it

1 Here may be noticed the later post-biblical rule that a man
might not sow on his field seed of a different kind to that specified
in his contract (Vogelstein, Landwirtschaft in Paldstina^ 1 50, n. 20).

2 Ex. 23 ii. On the curious change in Lev. 25 20-22 (fallow in
the ninth year), see the commentaries of Driver and White (Haupt's
Sacred Books of the Old Testament), and Bertholet, ad loc.

3 Oort, Theologisch Tijdschrift^ 1900, p. 286 (Bertholet, on
Lev. 19 9).



CHAP, vin LAND AND AGRICULTURE 197

is more tempting to suppose that the rule took its
rise in ceremonies relating to the corn-spirit and the
last sheaves of corn which, as Mannhardt and
Frazer have shown, are to be found almost every-
where. 1 As another example of the manner in
which an agricultural custom has been preserved in
Hebrew ritual, it is interesting to observe that the
Law of Holiness is doubtless only following ancient
practice when it forbids the fruit of newly planted
trees to be eaten before the fifth year (Lev. 19 23 sq.).
This is precisely the length of time which, as we
have already seen in CH, 60, must elapse before
the gardener and owner are allowed to divide the
produce. Finally, if Hebrew law forbade the de-
struction of fruit-trees in war (Deut. 20 19), it is more
than probable that the offence of cutting down a
tree in the orchard of another (CH, 59) was one
for which customary usage made some provision
(cp. Ex. 22 5 sq.)?

Circumstances combined to make artificial irriga-
tion in Babylonia a matter of the greatest necessity,

1 The modern Palestinian harvest-ceremony with the corn-spirit,
as related by Jaussen, Revue Biblique, 1903, p. 258, seems to be at
present the only known example of its kind from the Semitic field.

2 Cp. Fenton, Early Hebrew Life, p. 39, who also observes that
trees in the open country would be common property. This is no
doubt correct as regards all vegetation which required no manual
labour or care ; even Josephus remarks that whatever grows of itself
is for the use of the whole community (Ant. iii. 12 3). The usufruct
is free to all, only entire possession cannot be arbitrarily claimed.
So, the Deuteronomic law which allows the passer-by to take the
eggs or young ones but not the mother -bird is possibly only one
typical case in point (see Fenton, op. cit. p. 48).



/



198 THE LAWS OF MOSES CHAP, vm

and the watering of the fields sometimes forms one
of the clauses in the tenant's contract. 1 Equal
attention was paid to it in Arabia, 2 Palestine, and
Syria, although no traces of laws analogous to those
in the Code of Hammurabi appear to exist, 3 and the
silence of the Book of the Covenant may be taken
as proof that artificial irrigation was not practised to
any great extent in ancient Israel. 4

Babylonia was intersected with canals which re-
quired constant repair; they were cleaned out at
intervals, and the banks strengthened from year to
year. 5 The responsibility for their maintenance
rested with the men who had land along the banks,
in return for which they appear to have held the
rights of fishing. 6 If a man was too negligent to
attend to the banks of his canal, and a breach
opened itself and the fields (ugaru) were inundated,
the Code enacted that the man must make good
the corn which was destroyed, and in default of this
he and his goods (bi-sa-su) were sold and the pro-
ceeds shared by those who held the fields (mar

1 Meissner, op. cit. p. 12, n. 3.

2 See Rel. Sem. (2) pp. 96-104, for the distinction between land
requiring artificial irrigation by laborious methods and that which is
kept fresh by nature. Cp. also Barton, Semitic Origins, p. 124.

3 Cp. Anderlind's description of modern methods, ZDPV, 931-38,
48; Vogelstein, op. cit. pp. 13-18 (1894); Doughty, Arabia Deserta,
2 199.

4 Wellhausen, Israelitische und jiidische Geschichte^ p. 82, n. 2.

5 So also in Talmudical times (Pick, Assyrisches und Tal-
mudisches, p. 21 sg.).

6 King, Letters, pp. 14 sq., 121 sq.



CHAP, viii LAND AND AGRICULTURE 199

ugare; 53 sq.). 1 The water was conveyed through
the fields in trenches, and the Code provides that
the man who opened his runnel (a-dap-pa-su) for
irrigation, and negligently allowed the bordering
field to be inundated, must pay back corn " like its
neighbour" (55; cp. 42, above). If, through
such negligence, the crops (ip-se-tim) of the next
field were inundated, he was ordered to pay ten GUR
of corn per CAN ( 56 ; cp. 44, 63, above). 2

Theft of a man's watering -wheel and bucket 3
come under consideration in the Code ( 259 sy.),
and a number of minor regulations relating to agri-|
cultural life are set down with great minuteness.!
The hire for a working-ox for one year is fixed at
four GUR of corn ( 242); the milch-cow (?) was one
GUR less ( 243). The payment for animals hired
for the purpose of threshing is twenty KA 4 of corn
for an ox, ten for an ass, and one for a lalu (young
calf or goat?; 268-270). The ox and ass were
similarly used in Palestine ; 5 in Babylonia the lalu



1 Are these lands held in common ?

2 The Babylonian legislation reminds one of the Irrigation
Department in the kingdom of Asoka the Buddhist emperor, and
the analogous institution in Egypt.

3 One is reminded of the provision in the Laws of Manu for the
theft of a rope or watering-pot from a well (8 319).

4 A GUR of corn contained three hundred KA, and was worth one
shekel of silver.

5 EBi. "Agriculture," col. 82 ; Vogelstein, op. cit. p. 68 (where
the hire is 6 kab for an ox, 3 for an ass) ; cp. ib. n. 66 sq. (where
threshing-machines are worked by oxen, as in Assyria). The
"working-ox" ( 242) may also have been used to turn the water-



200 THE LAWS OF MOSES CHAP, vm

may have been employed only by the poorest. For
oxen, wagon, and driver, one hundred and eighty
KA of corn per day is demanded ( 271), but for the
wagon alone only forty ( 272).

/ Here it will be convenient to notice the laws
/relating to crops damaged by the flocks. Accord-
ing to the Code, if a shepherd pastured (us-ta-ki-il)
his sheep upon the growing corn (sa-am-mi) with-
out coming to an agreement with the owner of
the field and without his (consent), at harvest-time
the shepherd must pay twenty GUR of corn per CAN
( 57)- The law is perfectly straightforward; the
[crops are less, owing to the depredations of the flock,
(and a compensation must be made. The law that
follows is less easy to understand. If, after the
sheep leave the pasture (ugart) and the whole flock
(? ka-an-nu ga-ma-ar-tim) has passed through the
city gate, the shepherd lays them upon a field and
pastures them there, the shepherd must attend to
(i-na-sa-ar-ma) 1 the field, and at harvest-time he
must measure out sixty GUR of corn per CAN ( 58). 2
The heavier penalty presupposes that the crops are
in a more advanced state.

The additional labour imposed upon the herds-
man is not out of keeping with the spirit of the
Code, 3 on which account the alternative rendering

wheel, as was and still is customary in Palestine {Jewish Encyclo-
paedia, 1 268$).

1 nasdru, used analogously to the Heb. samar.

2 The law was already familiar from Rm. 277, col. viii. 7-22 ;
cp. Delitzsch, Beit. 2. Assyr. 4 82 sq.

3 Cp. 44, where the man who has taken a field for three years



CHAP, vin LAND AND AGRICULTURE 201

adopted by Johns ("the shepherd . . . one shall
watch") does not commend itself. A further
difficulty appears in the opening words, which seem
to presuppose that there were fields within the city
gates. 1 In point of fact, it would appear from other
evidence that there were spaces inside the walls,
and both Babylon and Nineveh were full of such
"squares," 2 but the open ground outside, in front
of the gate, was used for pasture and was the
scene of periodical markets. Perhaps the mean-
ing is that the sheep have been allowed to tres-
pass on their way from the pasture-ground to the
gate.

The same topic comes under consideration in later
Jewish law, 3 and according to the traditional interpre-
tation provision is made even as early as the Book of


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