III. Third Division of the Laws. Of Crime, War, Property, the Family, and Equity. 19–25

Over 50 laws on all these relations and duties of the ordinary citizen. This division of the Code is distinguished from the two previous, (1) by being uninfluenced—except in the case of the first law, on the Cities of Refuge, and perhaps also in Deuteronomy 21:1-9, Deuteronomy 23:15 f.—by the centralisation of the Cultus; (2) by a less orderly arrangement; and (3) by the appearance of new terms and ideas such as the elders (explicable by the fact that the subjects of these laws are not new institutions consequent on the centralisation of the cultus but older local customs and organisation), the house of the Lord, the assembly of the Lord, etc. But we find prevailing the same deuteronomic language and style, the same proofs of compilation from earlier codes (doublets, traces of fusion, etc.) and the same signs of editorial expansion. The principle of grouping laws according to the relation to their subjects is sometimes observed but frequently departed from. The only other explanation of the order followed is the presence of corresponding catch-words at the end and beginning of consecutive laws. See below.

CHAPTER 19

Of the Cities of Refuge

Israel shall set apart three of the cities of the land (Deuteronomy 19:1 f.)—to be selected after their position is taken into account and the land divided into three parts—so that every manslayer may have the chance of asylum (Deuteronomy 19:3). And (a) this is the case of the manslayer who by flight there shall secure his life: viz. if he has slain his neighbour accidentally, as e.g. when they were hewing wood (Deuteronomy 19:4-6). Therefore three cities (Deuteronomy 19:7). But if God enlarge Israel’s land three more shall be added so that no innocent blood be shed (Deuteronomy 19:8-10). But (b) the wilful murderer who flees to one of these cities shall be brought thence by the elders of his commune and delivered to the avenger, that the guilt be removed from Israel (Deuteronomy 19:11-13).—In the Sg. throughout and with many phrases of D. Yet there are signs of compilation. As in Deuteronomy 15:2 ff. an earlier law seems to be quoted, for, as there, neighbour is used instead of brother which is usual in Sg. passages.

Stade (Gesch. i. 664, n. 3), Berth. and Marti take Deuteronomy 19:8-10 as later than the rest of the law, on the ground that it breaks the connection between the two cases of manslaughter, (a) the innocent, and (b) the wilful. This is not at all certain. The provision of three more cities, Deuteronomy 19:8-10, comes naturally after the case of the innocent slayer in whose interest it is made, as Deuteronomy 19:10 points out; and it may well be from the same hand as 4 ff. Nor is there reason for supposing (with Steuern.) that Deuteronomy 19:11-13 are from another hand than Deuteronomy 19:3 b ff., for Deuteronomy 19:3 b says that the cities are for every manslayer, therefore for the guilty (Deuteronomy 19:11-13) as well as for the innocent (Deuteronomy 19:4 ff.), that all alike may have a fair trial; and both Deuteronomy 19:4 ff. and Deuteronomy 19:11 use the term neighbour. The position of Deuteronomy 19:8-10 and the order of the whole passage are thus quite logical. At the same time Deuteronomy 19:8-10 have been expanded by some standard formulas (see notes) and others appear in Deuteronomy 19:1-3; Deuteronomy 19:13. It is remarkable how unnecessary these phrases of D are, and how when they are removed, there is left (as in other cases) a law, compact, consistent, and so far sufficient. It is, of course, impossible to say whether the law had originally none of these phrases, and therefore no reference to Moses or Israel’s standpoint before entering the land. But it yields these certain signs of its origin. It is a consequence of D’s centralisation of the cultus, and is therefore later than E whose law, Exodus 21:12-14, recognises every altar of Jehovah as an asylum, cp. 1 Kings 1:50; 1 Kings 2:28 f. Also the mitigation of the violence of the vendetta agrees with the equity and humanity that pervade D’s Code. Like other laws of D this does not abolish but qualifies the earlier procedure. The avenger is not superseded, but remains the executioner of the wilful murderer of his kinsman, only he cannot perform this family duty till the public authorities have delivered the murderer to him. Again, the law was drawn when Israel’s territory was still small (Deuteronomy 19:3; Deuteronomy 19:8) therefore hardly in the reign of Solomon, to which some scholars assign the Bk. of Deut. On the relation of D’s law to the corresponding laws and other passages in P, and to the fragment above, Deuteronomy 4:41-43, see notes on the latter.

1–3 contain several formulas. On shall cut off, etc., see Deuteronomy 12:29; on whose land the Lord thy God is to give thee and giveth thee to possess it, see Deuteronomy 18:9; on succeed (dispossess), see Deuteronomy 12:29; on causeth thee to inherit, see Deuteronomy 1:38.

2. separate] set apart, Deuteronomy 4:41.

3. prepare thee the way] Usually taken as making the road open and firm. But (though Steuern.’s objection to this meaning, that such preparation would give equal advantage to the pursuer with the pursued, is hypercritical) this has no relevance to the rest of the v., as the older translators already saw and gave it another sense: LXX στόχασαί σοι, ‘reckon,’ or ‘guess,’ O.L. aestimare. Steuern. renders measure the distance. Better fix, or make sure of, the direction (in which the cities lie), and divide the area of thy land into three.

every manslayer] The general term, Deuteronomy 4:42.

4. And this is the case of] See note on Deuteronomy 15:2, and the introd. to this law.

whoso smiteth his neighbour unawares … time past] See Deuteronomy 4:42, which has slayeth for smiteth.

5. as when a man goeth] Heb. and who goeth, continuing the construction of the previous clause; but EVV.’s rendering is possible by a slight emendation of the Heb.

forest] As in most instances in which forest is used by EVV., the term misleads. Heb. ya‘ar was one antithesis to fertile or cultivated land (Isaiah 29:7) and, as evident from the conditions of Palestine today as well as those reflected in the O.T. (HGHL, 80 f., Jerus. i. 78, 305), must usually have meant copse or jungle or, at the most, woodland. The Ar. wa‘ar is ‘rocky ground,’ whether with or without bush.

and his hand fetcheth a stroke] Heb. is driven, or lets drive, with the axe.

helve] R.V. marg., tree; which offers the alternative meaning, that the edge of the axe slipped aside from the tree which it struck. But Heb. ’çṣ, which = both tree (as in the previous clause) and piece of wood, means here the latter, and the vb is to be translated slippeth off from (Exodus 3:5, Joshua 5:15 of the sandal from the foot; cp. Deuteronomy 7:1; Deuteronomy 7:22; Deuteronomy 28:40). LXX falleth off (probably reading naphal for nashal, cp. 2 Kings 6:5). ‘One sees exactly how the law grows out of the actual relations of everyday life’ (Berth.).

he shall flee unto one of these cities and live] Joshua 20:4 (a deuteron. addition to P’s law) says that he shall first, at the gate, state his case to the elders.

6. avenger of blood] Heb. go‘el haddâm (2 Samuel 14:11, Numbers 35:19-27, Joshua 20:3; Joshua 20:5; Joshua 20:9). The consuetudinary law of the vendetta is not abrogated, but persists so far as the nearest, or other, kinsman of the slain still takes the duty of punishing the slayer. See v. 22 and Add. note.

while his heart is hot] and he cannot discriminate between accidental and wilful murder. It was doubtless to avoid the same unjust passion that the right of sanctuary arose among the nomad Arabs.

because the way is long] to the One Altar, Deuteronomy 14:24; cp. Deuteronomy 12:21.

mortally] Heb. to, or as to, the life (nephesh), Deuteronomy 19:11; cp. Deuteronomy 22:26.

whereas, etc.] Heb. there being no case of death to (against) him (a circumstantial clause); cp. Deuteronomy 21:22, Deuteronomy 22:26.

7. Wherefore I command thee] Cp. Deuteronomy 15:11.

8. enlarge thy border] See on Deuteronomy 12:20, and the introd. to this law.

as he hath sworn, etc.] See on Deuteronomy 1:8.

and give thee … thy fathers] Redundant after previous clause, and (though confirmed by LXX B and other Codd.) probably not original, Luc. omits. The readings here differ much in the versions and their Codd. shewing how readily scribes altered and expanded the text.

9. A parenthesis, being the condition of the promise in Deuteronomy 19:8.

if thou shalt keep all this commandment, etc.] LXX B, etc., hear all these commandments. Cullen, p. 141, takes this passage as an actual quotation from Deuteronomy 11:22. On the formula, keep … to do, see Deuteronomy 4:6, Deuteronomy 5:1.

to love … in his ways) These phrases (cp. Deuteronomy 6:5, Deuteronomy 10:12) some LXX Codd. and Luc. omit.

then shalt thou add three cities more] is the apodosis to 8 a; all between consists of such formulas as later scribes were fond of inserting, and the evidence of the versions goes to show that they are not original.

10. that innocent blood be not shed] Cp. Deuteronomy 21:8, Deuteronomy 27:25 : here the blood of an innocent slayer.

which … for an inheritance] Another standard phrase, om. by Luc., and some LXX Codd.

and so blood be upon thee] Upon the nation as a whole, on the principle of ethical solidarity so often illustrated in D. For the idiom, cp. 1 Samuel 16:8; for the synon. blood in the midst of Israel, see Deuteronomy 21:8.

11. But if any man hate his neighbour, etc.] The wilful murderer must not escape through the provision of protection for the innocent slayer.

and lie in wait] Cp. E, Exodus 21:14. For mortally see Deuteronomy 19:6.

12. the elders of his city, etc.] It is not said who are to judge if wilful murder has been committed (for this see Joshua 20:4-9), but the elders of the murderer’s town are responsible for his delivery into the hands of the avenger; it is assumed that they are satisfied as to his guilt. The control of the old custom—in which the punishment of a murderer was a family duty—is in the hands of the public authorities. This is not without analogies among the Semitic nomads (Musil, Ethn. Ber. 361 ff.). Elders also appear in Deuteronomy 21:2 ff, Deuteronomy 21:6; Deuteronomy 21:19 f., Deuteronomy 22:15-18, Deuteronomy 25:7-9, with judicial or executive functions. On their relations to the judges see on Deuteronomy 16:18. Doughty (II. 368) mentions a case of murder at Aneyza, where the father was commanded by the Emir and elders to slay the murderess and declined, whereupon she was executed by the public authorities.

13. Only by such action on the part of the local authorities and the kinsmen of the murdered man can the guilt of the crime be removed from the whole nation. To this extent the ancient custom of the vendetta is recognised as part of the theocratic system.

thou shalt put away] See on Deuteronomy 13:5 (6).

that it may go well with thee] Another recurrent phrase; Deuteronomy 4:40, Deuteronomy 5:16; Deuteronomy 5:29, etc.

Additional Note: The Vendetta, ‘the one element of jurisprudence in the wild life of the desert,’ springs from, the simple principle of blood for blood, still valid in the law of Israel, Genesis 9:6. Its moral effects are twofold and contrary. On the one hand it is a restraint upon manslaughter, the possibilities of vengeance which it lets loose engendering reluctance to take life except in self-defence. On the other, when once a man has been slain, there is no chance of a fair trial for the slayer; though his deed may have been an accident he may have to atone for it with his life; while the excitement of whole families and tribes to avenge it is a fertile source of disorder and of war, which may last and has lasted for a century. The duty of the vendetta extends sometimes to the third sometimes to the fifth degree of kinship, but among the Sinai Arabs to the sixth from the grandfather down (Jennings Bramley, PEFQ 1907, 135). Hence even in the wildest parts of Arabia there arose the right of sanctuary in any tent from which it was claimed, and the respite was used for the investigation of the case, and even in cases of wilful murder for the arrangement of some compromise—financial or otherwise—between the slayer and the kinsmen of the slain. In these negotiations the tribal authorities would often intervene. But even this has been found insufficient to secure order and justice, and wherever a central authority has been established among the Arabs one of its first efforts has been to control and regulate, or even to abolish, the vendetta. For modern examples—the Wahabees, Mohammed ‘Ali, the Russians in the Caucasus and the Sublime Porte—see Von Oppenheim, Vom Mittelmeer zum Pers. Golf. Similarly in Israel. The earlier law (as we have seen) gave sanctuary at every altar of Jehovah. When only the One Altar remained the opportunity came to modify the whole consuetudinary law; the vendetta was not abolished but controlled by the rights of sanctuary in certain accessible cities and by the interference of the local authorities. These provisions, apparently first made by D and elaborated in P, secured a fair trial and the acquittal of the innocent slayer; but they do not allow any such compromise, financial or otherwise, as frequently takes place among the Arabs between the wilful murderer and the kinsmen of his victim. In Israel the wilful murderer must die. Such distinctions of Israel’s system from the customs of her Semitic neighbours, involving as they do both a greater humanity in one direction and a greater severity in the other, are of the highest ethical interest.

14. Against Removing Boundary Stones

In the Sg. address, but as in Deuteronomy 19:4 f., 11 and Deuteronomy 15:2, q.v., with neighbour instead of brother, usual in Sg. passages; and followed by a deuteronomic formula. It is significant that the formula is not only separable from the law proper (as in the previous law) but contradicts it. For while the law betrays its date as subsequent to Israel’s settlement in the land—and with this agree the facts that there is no parallel in the earlier codes and that protests against removing boundary-stones appear in the prophets and later books (Isaiah 5:8, Hosea 5:10, Proverbs 22:28; Proverbs 23:10, Job 24:2)—the closing formula adopts the standpoint of Moses, the land which the Lord is to give thee. Clearly, therefore, the law has been adopted from some other source into D’s Code—cp. the Decalogue—but there is nothing to show whether this incorporation was due to the authors of the Code or to editors.

It is difficult to explain the position of the law just here. Steuern. and Berth, attribute this to its use of the term gebul, boundary, used also in the previous law (Deuteronomy 19:3 a, yet with a different meaning from here); the former thinking that in its original form the law was entered on the margin and thence taken into the text by the compiler of the Code, the latter that it may have formed part of the original Code. Notice rather that both laws besides being in the Sg. address use the term neighbour, and were therefore probably from the same source. Dillm. points out that in this ch. murder, theft and false-witness appear in the same order as in the Decalogue, and Dri. compares Deuteronomy 27:17 ff.

Other nations expressed the same reverence for the sacredness of boundaries, in similar laws, or protests, against their removal. For the Greeks see Plato, Legg. viii. 842 e, for the Romans Dion. Hal. ii. 74, Plutarch, Numa 16. For the settled Semites cp. the border-stones of fields which are among the oldest Babyl. monuments; bearing dedications to the gods ‘they were regarded as sacred and great importance was attached to their preservation. The Kings taxed their powers of cursing [cp. Deuteronomy 27:17] in order to terrify men from removing their neighbours’ landmarks’ (Johns, Babyl. and Assyr. Laws, etc., 191 f.). For other Semites cp. Clay Trumbull, Threshold Covenant 166, Musil, Ethn. Ber. 87, Doughty i. 163. No such Israelite stones have been found, but M. Clermont-Ganneau discovered the boundary inscriptions of the town of Gezer (‘at or near the 1st Cent. b.c.’) bearing the term teḥum, the later Heb. for gebul (Arch. Res. ii. 26 ff., 270 ff.). For modern Palestine see Baldensperger, PEFQ 1906, 194.

14. remove] Lit. so: re-move, move back, so as to make one’s own field larger.

landmark] Heb. gebul, applied both to the border-line whether of private fields (here, and in E, Joshua 24:30, cp. texts cited above) or of urban (Isaiah 54:12) or tribal (Deuteronomy 2:18, Deuteronomy 3:16) territories: as well as to the area enclosed by the border (Deuteronomy 19:3; Deuteronomy 19:8, Deuteronomy 2:4, Deuteronomy 28:40).

they of old time] Heb. rîshônîm, the former generations, the forefathers: LXX B etc., πατέρες σου; A etc., πρότεροί σου.

in thine inheritance which thou inheritest] Part of the law proper: the portion of ground (LXX κληρονομία) that passes from one generation of a family to another.

in the land which the Lord thy God is to give thee, etc.] the frequent deuteronomic formula, Deuteronomy 4:40, Deuteronomy 5:31, Deuteronomy 12:1, Deuteronomy 17:14, Deuteronomy 21:1, Deuteronomy 25:19; and in shorter form, Deuteronomy 15:7, Deuteronomy 18:9, Deuteronomy 25:15, Deuteronomy 27:2, Deuteronomy 28:8.

15. By Deuteronomy 17:6 (cp. P, Numbers 35:30), a man may not be put to death save on the evidence of more than one witness. Here the same is enforced for all cases.

One witness shall not rise up] Or, stand, that is, of course, as a valid effectual witness; the vb is the same as at the end of the v., shall a matter be established. But in the next v. rise up simply means appear, offer himself.

in any sin that he sinneth] Luc. omits.

15–21. Of Witnesses

Two or three witnesses are necessary for a conviction (Deuteronomy 19:15). If a witness, forcing his evidence, accuse a man of defection from the law, the two shall stand before God in the supreme court (Deuteronomy 19:16 f.), the judges shall investigate, and if the witness be found false, he shall have done to him what he devised for his brother; so shall evil be removed from Israel (Deuteronomy 19:18 f.) and others take warning (Deuteronomy 19:20); ruthlessly shall like for like be exacted (Deuteronomy 19:21).—Sg. (except for one slip into the Pl. in Deuteronomy 19:19) with the use of the term brother and other terms usual in Sg. passages. There are no deuteronomic formulas beyond the legal ones.

On the subject of this law cp. E, Exodus 23:1, Exodus 20:16, Deuteronomy 5:20 (the 9th commandment), and other passages cited below. By the Code of Ḫammurabi §§ 3 f., false evidence is punished on the same principle of like for like as here, Deuteronomy 19:19. In Arabia at least two witnesses are necessary; if their charge is not brought home they must flee from the vengeance of the accused’s relatives, with whom however they may come to an arrangement (Musil, Ethn. Ber. 337).

16. But if] So Sam. LXX.

unrighteous witness] Heb. witness of violence. So E, Exodus 23:1, and Psalm 35:11, apparently one who forces his evidence, does violence to the truth or intends violence to his neighbour. Driver renders malicious, ‘meditates some covert violence himself or assists by false testimony the high-handed wrong doer.’ Marti ‘with whom might goes before right.’ In any case the description is proleptic, his character is not decided till he is taken before the judges.

rise up] See on previous v. In this simpler sense in other Sg. passages; see on Deuteronomy 13:1.

to testify against him] Same vb as in Deuteronomy 5:20 (17).

wrong doing] Heb. sarah same as rebellion, Deuteronomy 13:5 (6) R.V. (cp. Deuteronomy 17:17), but while there it means apostacy from Jehovah here it is wider, any delinquency or defection from the law.

17. shall stand before the Lord, before the priests and the judges, etc.] That is in the supreme court to be instituted at the One Altar, Deuteronomy 17:9. The construction is awkward and betrays expansion. Steuern. and Berth. and Marti take before the judges as alone original, as these only are mentioned in the next v., and understand the reference to be, not to the supreme court but to the newly instituted judges of Deuteronomy 16:18. But it is quite as probable that before the Lord was all that the original text of the law contained, and that the rest was added from Deuteronomy 17:9 by an editor. This is just one of the difficult cases, which in more primitive conditions were referred to some representative of the Deity and which, on the institution of the supreme court at Jerusalem, Israel was directed to take there (cp. Deuteronomy 17:8, between plea and plea, the same Heb. term as is here rendered controversy).

18. shall make diligent inquisition] See Deuteronomy 13:14 (15), Deuteronomy 17:4; Deuteronomy 17:9; Sg.

false, falsely] Heb. sheḳer: so in Exodus 20:16, but Deuteronomy 5:20 has shav, vain.

brother] here and next v.: the usual term in Sg. passages for fellow-Israelite.

19. shall ye do] the only Pl. in the passage, confirmed by Sam. LXX; either a clerical error or an instance of the possibility of a writer slipping from one form of address into the other. Read shalt thou.

thought] Heb. zamam, devised.

so shalt thou put away] Frequent in this Code, see on Deuteronomy 13:5 (6).

20. those which remain, etc.] A curious parallel to Deuteronomy 13:11 (12).

21. thine eye shall not pity] See on Deuteronomy 19:13, Deuteronomy 7:16.

life for life, etc.] The jus talionis, more fully in E, Exodus 21:24 f.; cp. H, Leviticus 24:18; Leviticus 24:20. Very frequently in the Code of Ḫammurabi. See further Driver’s note on Exodus 21:25.