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chapter 5: The Jewish Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Jewish Law
The Semitic lamp of legal culture was passed on to another race whose genius lay in gradually ameliorating conditions in the law by elevating the ideas of the Deity, and by advancing the conceptions of rightful conduct. After Babylonia had long been a flourishing empire the Hebrew race emerged from a barbarous condition of life. They, by their very position, lay in a critical place. The marching and countermarching armies of Semites and Egyptians, contending for the mastery of the world, passed over the land. The reëditing of the Hebrew documents after the Babylonian captivity renders it difficult to separate different stages of the Hebrew laws. But since those laws have exerted their great influence on the medieval and modern law of Europe in their form, as shown in the Bible, it is not necessary to do more than to take the laws as they now exist in what we consider the sacred Scriptures. Accuracies of translation are of no importance, for the Latin Vulgate version and the English translation of the Scriptures have been the form through which the Jewish influence on European law has been exerted. It makes no difference whether the translation was exact or not. We must accept the laws as they are in the Bible as translated, and they must be considered for legal purposes as correctly translated, for in that form they entered into the development of the law.
It goes without saying that the Hebrew laws are the product of a long development. They begin as primitive customs, which are gradually ameliorated with the progress of time. After the captivity at Babylon, many things from the Babylonian law were incorporated into the Jewish law. The Diaspora, or dispersion of the Jews, resulted in great Jewish communities in many lands. But the following sketch of Hebrew law will be confined to that part of the Jewish law which was passed on to the Romans and by means of the Scriptures and medieval priestly judges exerted so great an influence on modern law. The religious ceremonial law lies outside of this line of influence. We are not here concerned with the fact that critical study of the Scriptures would find much to criticize in the medieval lawyer’s beliefs as to the original source of Hebrew law, and as to the validity of any assumption that those laws are properly called divine.
The first glimpse we obtain of the Jewish tribes shows a patriarchal form of family and a tribal organization where the priest is the ruler and leader of his people. The priest is the actual ruler and he alone was able to convey to his followers the commands of their god. He was the custodian of the laws, and was the judge of the disputes in the tribe. Thus would speak a medieval lawyer, using the Bible to ascertain its legal commands as the words of revealed truth. To him every text was the undoubted wisdom of Omnipotence and all the texts were to him of equal force and all came from the period and from the authorship that was claimed for them. The laws emanated from God and were divine, and the priest alone administered them.
The story of Jethro, the Midianite, the father-in-law of Moses, although very late and showing some Hebrew scribe rationalizing the ancient writings, indicates the condition and gives us our first example of a reformer of legal procedure. The tale indicates that Moses, with his duties as leader and ruler, mouthpiece of the God, recipient of the laws, and judge of all disputes, was an exceedingly busy man, wearing himself out in attending to his multiform duties. Jethro had come to visit his son-in-law and to congratulate him not only on having escaped out of Egypt, but on having so thoroughly “spoiled” the Egyptians just before starting. Moses in hospitable fashion had a dinner for his guest and invited to meet him Aaron and the elders. This has a modern sound. Aaron, a great talker, highly entertained the Midianite at the dinner, though he, no doubt, was discreetly silent regarding the golden calf episode. The next day Jethro, in wandering about, came upon the curious sight of Moses as he sat to judge the people “from the morning unto the evening.” Jethro is the first on record of those curious animals who can sit patiently in a court room all day hoping for something to happen which may be interesting. It was, to use an anachronism, all Greek to Jethro, and he inquired of his son-in-law what he was doing, sitting alone all day with the people standing by. Moses replied that they came with a dispute “to enquire of God” and he judged “between one and another” and made them “know the statutes of God and his laws.”
Jethro, who apparently had never seen such a performance before, replied at once with preternatural wisdom: “The thing that thou doest is not good.” It wears you away and is too heavy for you and you cannot do it well all alone. “I will give thee counsel.” Continue to intervene between the people and their God, teach them the ordinances and the laws, but “provide out of all the people able men” and let them judge the small disputes, but “every great matter they shall bring unto thee.” Moses took the advice of this first and eminently sane reformer of procedure, and did choose able men who judged the people at all seasons and “the hard causes they brought unto Moses, but every small matter they judged themselves.”
This is a belated priestly explanation of the institution of various kinds of courts and the general idea of an appellate court. Perhaps the Midianite nomad was a traveled man, and had seen such institutions in Babylon, where they had been in use for a thousand years or more. The story is clear as to the judicial function belonging to the priest.
It is of no importance to us that the exodus of six hundred thousand people, with flocks and herds, as Genesis represents it, would have required a train of march about two hundred miles long, that a forty years’ sojourn in the desert of such an array is out of all question, that the function of manna to feed the array seems problematical with great flocks and herds available, for these supposed historical facts have nothing to do with the legal situation, except to show that the tribe was living in the pastoral or nomad stage.
The divine command, as the priestly scribes represented it, had been given expressly for a kingdom ruled by priests without a king, “a holy nation.” This theocratic idea of government, advanced in the Scriptures, has never been given up by the religious, as witness the Puritans in England and New England and the Scotch Presbyterians. The system was a failure in Palestine as it will be everywhere. After an experience that left the Jews in subjection to the Philistines with their arms taken away from them, they demanded a king competent to lead. Samuel, the judge, is related to have painted for them a frightful picture of what kings would do to them, but the people “refused to obey the voice of Samuel” and very sensibly said: “We will have a king over us; that we also may be like all the nations; and that our king may judge us, and go out before us, and fight our battles.” They were evidently weary of poor generals and poor judges, in spite of the startling performances of Samson, who was a judge of Israel. Singularly enough the account, which is, of course, by a priest, states that Samuel sought advice of the Lord and was told to let the people have their own way, that they would pay heavily for it. Thus happened in Palestine what had happened more than a thousand years before in Babylonia; the king became the fountain head of justice until, after Israel passed under the Assyrian and Judah under the Chaldean, the priestly rule was restored for a time.
The change to a kingly rule was immediately successful. The Jews grew in prosperity and wealth. They penetrated along the great trade routes and became active in commerce. They took their alphabet and the art of writing from the Phenicians. They produced a large amount of religious writing that was unparalleled in its elevation, although some of the Egyptian and the Babylonian literature of this kind is very beautiful. The state suffered dissensions in its exposed situation. The Kingdom became divided. These misfortunes were constantly treated by the priests as due to a departure from the worship of the Hebrew god and the rule of the kings was tempered by priestly rebukers, just as long afterwards St. Ambrose rebuked the Emperor Theodosius.1 Underneath this history lies a legal development which began with the usual primitive practices of the Semites.
Among inherited primitive institutions the patriarchal family stands out very clearly, and as a consequence the custom of monogamy was prevalent. The head of the family seems to have had absolute power over his children, so much so that Abraham could prepare to offer his son as a sacrifice. This is the salient fact, a father had the power of life and death over his son. Marriage had become a matter of contract, and the husband had control over the wife. The forbidden degrees of marriage were all within the kindred, except that the Hebrews were commanded to marry within the tribe. This exclusiveness was fed by a jealousy of their God toward other gods, but this injunction to marry within the tribe was continually violated. The daughters of Heth that wearied Rebecca continued to be attractive. Property was originally family property and was kept within the family by the usual expedients. There were certain customs calculated to preserve the family and its property. The widow could call upon her deceased husband’s nearest male relative to marry her. The original statement is that the widow could conscript her husband’s brothers. The story of Ruth, a very late book in the Old Testament dating from a time after the Captivity, illustrates the situation and is interesting because it turns on a point of law.
A Hebrew, Elimelech, from Beth-lehem-judah, at a time of famine, in the period of the Judges and before Saul or David, went into the land of Moab, taking with him his wife Naomi and their two sons. The husband died, and the sons married in Moab, one marrying Ruth and the other Orpah, both Moabitesses. The sons died, and Naomi started to return to Judea. She advised her daughters-in-law to return to their own people, for Naomi said, “I have no other sons to marry you,” meaning, of course, that if she had other sons the law would compel them to marry the widows. Orpah went back to her family, but Ruth “clave” to this pearl among mothers-in-law. The two women came back to Bethlehem in the beginning of the barley harvest. Naomi now looked for some one out of her husband’s family to marry Ruth (the agnatic relation is emphasized; there was no duty to marry laid upon Naomi’s own family). The law suddenly becomes wide enough to entrap as a husband for the widow any male kinsman of the dead husband of Ruth, but the law gave the preference to the nearest male kinsman. The law, however, meant nothing to this lady. She selected the wealthy Boaz, a kinsman of her husband’s, but not the nearest; and Ruth, who had some confidence in her own good looks, suggested that she go to glean corn in the field in the hope she might “find grace” in some one’s sight. The harvest field as a place to look for a husband sounds primitive. Naomi, no doubt, took care that Ruth went to the right place to find Boaz. The detail of the tale is too prolonged for quotation, but Boaz was helpless in the hands of the two women, and they schemed it so that Ruth was, as we should say, thoroughly compromised.
Boaz seemed much taken by Ruth’s beauty, and by the fact, so flattering to an elderly man, that Ruth “followed not young men.” There was, however, a kinsman nearer to Ruth’s dead husband than was Boaz. This kinsman had the right or, perhaps we should say, the duty to marry her, but if the nearest kinsman would not exercise his privilege, Boaz announced himself an eager candidate as the next kinsman in line. Naomi, evidently instigated by Boaz, now called upon the kinsman to redeem a tract of land of her dead husband, or perhaps she put the land up for sale; and Boaz brought the nearer kinsman before the elders of the city and offered him the chance to buy or redeem, saying, “You buy also of Ruth and you must take her with the land”; but the kinsman said that he would be compelled to go into debt for the land, and he said to Boaz, “Buy it yourself.” The beauty of Ruth had no effect upon this clod. Thereupon Boaz said unto the elders, “Ye are witnesses that I have bought the land of Elimelech and his two sons, and have bought Ruth, the Moabitess,” wife of one of the sons. So Boaz married Ruth and the story ends with Naomi holding in her arms her first grandson, whose grandson was King David. He probably inherited his ability from his great-great-grandmother. Boaz was a doomed man as soon as Naomi selected him as a husband for Ruth.
When we look through this story to the legal conceptions behind, it shows the marriage by purchase, the fact that the land inheritance must be sold to, or, if sold, redeemed by, the nearest kinsman that wished to own it, and that it was the duty of the purchaser to take the widow of his kinsman along with the land. This tale has a plot founded upon a good law-point, the first of such plots on record. It is a curious mixture of primitive law, female perspicacity, love at first sight, and sound ideas of business.
In the earlier law a vein of unconscious humor is introduced by the provision that if the brother or kinsman of the dead husband was so ungallant as to refuse to marry the widow, he could be haled before the old men by the slighted widow, who was permitted to address him in exceedingly contemptuous terms, and then she was given the inestimable privilege of “spitting in his face.” This also seems to be quite primitive; and yet the legend among the feminists is that the primitive laws were made by men for their own advantage.
Another primitive element in Jewish law is the lex talionis, the age-old expedient of an exact retaliation. It is said to the law-breaker, “If any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” There crop out here and there the old taboos of defilement by the touching of any creeping thing, the eating of certain kinds of food, the eating of meat unless it have the proper butchering. All these taboos are most pronounced in the priestly code of law: “a blind man, or a lame, or he that hath a flat nose, or any thing superfluous, or a man that is brokenfooted, or brokenhanded, or crookbackt, or a dwarf, or that hath a blemish in his eye, or be scurvy, or scabbed...shall not come nigh” the altar. In the list of things forbidden to be eaten are the camel, hare, coney, horse, swine, eagle or osprey, the kite, vulture, raven, owl, hawk, cuckoo, swan, pelican, stork, cormorant, heron, lapwing, bat, every creeping thing that flieth and anything in the water without fins and scales. The reasons given for tabooing swine, “that it parteth the hoof but cheweth not the cud,” points to some sort of prehistoric judgment that came out as a taboo. The camel’s hump is said to be good eating, horseflesh is an excellent viand, and the swan for centuries graced the royal table. There is no reason for proscribing the eel, and locusts are said to be good food by those who enjoy them. What would become of crabs and lobsters under this divine command? Only a priest could object to ham or bacon. The injunction against eating anything that dieth of itself was sound from a sanitary standpoint. Other taboos are curious. The prohibition of a team made up of an ox and an ass, the command that a bastard’s progeny shall not enter the congregation until the tenth generation, the injunctions to keep cattle of unmixed breed, not to sow mixed seed, not to wear any garment of mixed wool and linen, have some basis in primitive beliefs. Perhaps the injunction that a man shall not wear a woman’s clothes, nor a woman a man’s, belongs in the same category. But it would seem that the Jews had never heard of a mixed team of dog and woman, such as can be seen in some European countries.
The law considered peculiarly divine was the Ten Commandments which were delivered engraven on a stone “by the finger of God.” Moses, in his disgust at the golden calf performance of his followers, broke up the first copy, but he was furnished with a second. These laws are of a legal, a religious, or a moral character. It is worthy of note that there is no sanction to those laws as delivered; that is to say, no punishment is prescribed; but the people are plainly told what evils will fall upon them if they violate these laws. Yet the evil is not to fall upon the wrongdoer, it is to involve both innocent and guilty in one common destruction. In other words, here in its baldest form is the old primitive idea of no individual responsibility, but the general liability of the tribe or the city or the kindred for the wrongdoing of any one of the tribe or city or kindred. This is a belief grounded in human nature, and few to-day who read and believe in the righteousness of the punishment foretold, feel any repugnance to the injustice of the penalty. But as will appear, the Jews themselves prescribed punishments upon individual breakers of these laws. In fact, the Bible itself shows that there was a customary law much older than the law delivered to Moses.
The first command is the injunction that is wholly religious: “I am the Lord, thy God...Thou shalt have no other gods before me.” In the law that was said to be spoken by Moses, the injunction is given to kill any one, a brother, a son, a wife, or a friend, who enticeth to go and serve other gods. Such a one is to be stoned to death. The prophet Elijah smote or caused to be smitten many who longed after the worship of Baal. In another place there is an injunction to make no mention of the name of other gods, “neither let it be heard out of thy mouth.” As soon as those of Christian faith obtained control of the government of the Roman Empire, the harsh laws against unbelievers that remained throughout the Middle Ages began. The offense at first was called apostasy. The term “atheist” had already been appropriated by the pagans as an opprobrious epithet to describe the Christians. A noted Christian martyr was hurled to the beasts in the Alexandrian Theater with the cry, “Away with the atheist.” In the Middle Ages the denial of the formulated creed of the theologians was punishable by burning at the stake, and the melancholy instance of the learned Servetus at Geneva among the Calvinists rivals the folly of the death penalty imposed on Socrates. Savonarola’s death at Florence by burning seems to have been compounded of a penalty for poor prophecy, a hot resentment against a priestly rule, and a general offensiveness to the ecclesiastical authorities.
The second command supports the first by forbidding the worship of idols in any form. The prohibition is directed against any image or likeness, not apparently against the worshipping of natural objects, such as the sun or the moon; but the law spoken by Moses is that worshipers of the sun or moon or other gods are to be stoned to death. The images and idols are ordered to be burned and destroyed. A prophet speaking in the name of other gods shall be put to death. In this connection is a sound legal test for true prophecy, where it is said that if the thing follow not nor come to pass, the Lord hath not spoken but it is the prophet’s own presumptuous speech. This is equal to Jeremiah’s statement: “When the word of the prophet shall come to pass, then shall the prophet be known, that the Lord hath truly sent him.” If this was the sole test of prophecy, there was no reason why any one might not attempt it. If one by accident stumbled on a true prediction, he at once became a prophet. The commandment against idols itself imposes by way of punishment, after the Lord states that he is a jealous God, that the sins of the fathers shall be visited upon the third and fourth generation. This is the family responsibility substituted in the primitive way for an individual punishment, and it bore no appearance of harshness or injustice to those who were incapable of conceiving of individual responsibility.
The third command has been thought by some as intended to cover the case of one sworn on the name of God, who does not respect the oath. In the law is the command: “Ye shall not swear by my name falsely.” This commandment has for ages dictated the form of the oath in court and the crime of perjury. At other times—and this is the common meaning ascribed to it—it has been considered as a command against profanity and blasphemy, because it was readily perceived that a law that forbade false statements merely when an oath was taken in the name of the Lord left much to be desired as a command to speak the truth. Yet this idea has had its effect. There are countless people who do not hesitate to prevaricate, but if they are put under oath the old commandment has its effect.
The fourth commandment enjoins one day of rest during the week. For the Jews this day was the Sabbath. A thousand years before that time the day of rest during the week was observed in Babylonia. In the commandment as edited, the day of rest is given as a resemblance of the creation of the world in six days, and the Lord’s rest upon the seventh. To us this seems little short of irreverence. The later rationalists laid stress upon the value of the Sabbath as a day of rest. It was not only for believers, but for servants, slaves, and strangers, and the work cattle. It evidently belongs long after the nomadic days of Moses. It was a religious observance among the star-gazing Babylonians, celebrating the change in the phases of the moon, as the week is merely a quarter of the lunar month of twenty-eight days, each quarter corresponding to a phase of the moon. The last word in the Jewish law on the subject is that the day of rest exists “so that thine ox and ass” may rest and that “the son of thine handmaid” and the stranger may be refreshed. There is a case recorded of a poor wretch who went out gathering sticks on the Sabbath day and was stoned to death. This injunction carried into law in Christian countries not only has furnished material for the criminal law, but, in the civil law as to contracts made on Sunday, or a bill or note presented on Sunday, or any of the other varied circumstances in which the question arises, has produced some quite extraordinary law. The long insistence of the gloom of the Puritan Sunday among us has caused the strong reaction against it, which by very religious persons is ascribed to the machinations of the Evil One, whoever he or it may be.
The fifth commandment, to honor father and mother, shows that at last ancestor worship, so plain in the Hebrew writing, is having its effect. It is an immediate outgrowth of the patriarchal family. “Ye shall fear every man his mother and his father” is another form. He that smiteth his father or his mother or that curseth his father or his mother shall be put to death, is the legal form. Another provision of law was that a rebellious, incorrigible son, who refused to obey his parents, might be brought before the judges and by them he should be sentenced to be stoned to death. When King Herod desired to put his two sons to death, he quoted to the court which he assembled at Berytus this ancient law, as Josephus tells us in his Antiquities of the Jews. But if any one supposed that a mother would take part in this unique proceeding for putting to death a son, he must certainly have had little experience with the ways of mothers toward erring sons. This commandment is the basis in our law of what control parents can legally exercise over their children of maturer years. As a part of this law came the Jewish respect shown to the old. In the law they were commanded to rise up before the old, and this is to-day our custom of good manners, which only the uncouth or the ignorant disobey, although it is no longer law.
The sixth commandment is the prohibition against the killing of human beings. The Prayer Book translation attempts to rationalize this command by the translation: “Thou shalt do no murder”; but this is simply importing it into the later law. In primitive law every killing, accidental or otherwise, was an offense against the kindred. Men of that epoch were incapable of weighing the impalpable matter of intention. The original form of the law was, “He that smiteth a man so that he die shall be surely put to death,” but it was later recognized that there was a difference in killing. Then it was said that if the killing was not premeditated, the slayer might flee to a city of refuge. The cities of refuge were in charge of the Levites. They were for the manslayer, that he “may flee thither which killeth any person at unawares”; that is to say, accidentally. There were three cities beyond the Jordan and three in the land of Canaan. The case is put of two men felling trees and the axe flying off the helve; in such case the killer shall flee to the city of refuge and live.
In this connection the avenger of blood appears. He is the one in primitive law who is acting for the kindred and carrying out the blood feud or law of self-help. By the custom he can kill the slayer wherever he finds him. The law was later rationalized by a consideration of intention and by the nature of the weapon, if iron or a stone or a hand weapon of wood. The killer, in case of the use of a deadly weapon, was a murderer and should be put to death. This in our law is a presumption of malice from the use of a deadly weapon. If the slayer kill out of malice or by lying in wait he is a murderer, but if he kill suddenly without malice (our manslaughter) or cast anything upon the deceased without seeing him, or accidentally, and was not his enemy, nor sought his harm, the congregation of the city of refuge shall deliver the accused out of the hand of the avenger of blood and there in the city of refuge he shall stay until the death of the high priest. But he must stay in the city of refuge. If he comes out he can be killed. After the death of the high priest, the slayer can return to his own land—a curious statute of limitations, but the event of a high priest’s death was one that the whole public would know.
It appears that the Jews once had the old system of the composition or satisfaction given by the slayer for the killing, but murder had now become rationalized into, first, our murder or premeditated malicious killing; second, our manslaughter upon a sudden quarrel without malice; and, third, accidental killing. It became recognized that this offense of murder was no longer a private wrong to be settled by a composition or customary payment, for it was provided that the murderer must be put to death. No composition or satisfaction could be made for it, nor could there be any composition allowing a slayer to come out of a city of refuge. It need not be pointed out that the law of sanctuary in English law and all our present distinctions in the law of homicide trace directly back to the Semitic law. Connected with the law of homicide was that of assault and battery, but this injury was to be compensated for by paying for loss of time and by causing the injured to be thoroughly healed.
The seventh command shows the fully developed right in the head of the family to the fidelity of his wife. Adultery as an offense, however it may be rationalized, is really in the paramour an invasion of the husband’s assumed right to exclude others, which is the legal definition of property. It was an offense in which then and now a married woman must be concerned. The Jews had none of the looseness in sexual ideas of the early Babylonians. If a woman married who was not a virgin, she should be stoned to death. The offense of adultery was one committed by a wife. It was not an offense in the married man unless he was the accomplice of a married woman; but modern law has given the wife a reciprocal right of exclusive possession. The law was that if a man committed adultery with another’s wife, he should be put to death along with the erring wife. Fornication with an unbetrothed and unmarried woman required the offender to marry her, but if the father of the maid refused to allow the marriage, the offender was bound to pay money to the father of the damsel. The amount was the ordinary dowry of a virgin. This is our common law of the father recovering damages for seduction, given by the legal fiction of loss of service. Fornication with a betrothed maiden was treated as adultery. Fornication with a betrothed bondmaiden—i.e., a slave—was not punished by death but by scourging. The priests were certainly sound on the subject of conjugal fidelity in the wife.
The eighth command, against stealing, recognized the fully developed idea of property. The command was carried further in the injunction which is much less primitive in tone: “Ye shall not steal, neither deal falsely” with one another. “Thou shall not defraud thy neighbor.” The idea of stealing is carried into fraud and deception. All stealing could be compensated at the rate of five oxen for an ox, and four sheep for a sheep. Stealing was as elsewhere a private injury. If the thief were found with the property, he paid double. There was no question that there was a clear right to kill the burglar, as to which some doubt has been made under our law.
The ninth command is one of mingled law and morality. It may be either an injunction to be honest in social relations or an injunction to speak the truth as a witness. The law in Exodus enjoins against raising a false report, or being an unrighteous witness, and in another place it is said: “Keep thee far from a false matter.”
The tenth commandment is an injunction of morality against a state of mind. It is not a workable law, just as the injunction to “love thy neighbor as thyself,” found in the Mosaic law, is not a workable law. Except where a belief is made a crime, the law deals only with acts.
The Ten Commandments do not cover, except inferentially, certain well-known subjects in law. In those other matters there appears in Jewish law a spirit of great liberality. If we take the condition of slavery, the master who caused a loss of an eye or a tooth to his servant thereby made the servant free. If a Jew was sold as a slave to another Jew, such a slave, man or woman, must be released at the end of the sixth year. The law proclaimed that the escaped slave should not be delivered to the owner. This divine law could have been quoted against our Fugitive Slave Law. Kidnapping to sell into slavery was visited with the death penalty. Perhaps the release to be given to debtors at the end of every seventh year was only a counsel of perfection, as was no doubt the general injunction to lend to the poor. Both injunctions affected only Jews as the recipients of bounty. Charity was strongly enjoined as a duty. In spite of the jealousy toward other gods and the endogamous practice of never marrying with any other tribe, the liberal Semitic law as to strangers was enjoined. The provision as to the one law for homeborn and stranger sojourning, supplemented by the extension of the right to claim a city of refuge, was given to the stranger. The stranger should not be vexed, but he “shall be unto you as one born among you, and thou shalt love him as thyself.”
Just weights, just balances and just measures were enforced by the law. Fields should not be gleaned but should be left for the poor and for the cattle. “Thou shalt not muzzle the ox when he treadeth out the corn” is an oft-quoted duty. “Do not remove thy neighbor’s landmark” became a curse in the minatory law. In the vineyard the passer-by might eat as he pleased, but he could not carry anything away. Land must lie fallow every seventh year, so the beasts could eat therein, and in the vineyard and oliveyard the crop was not to be gathered every seventh year. The employer was commanded to pay his laborer at the end of every day. The man who had a new wife was not to go out to war.
Witnesses were used in legal disputes. There was none of the old primitive methods of proof. The original rule which passed into the canon law and into our law of overcoming the effect of a sworn answer in equity, and into the law of treason, was that two or more witnesses were necessary to make the proof. This meant two eyewitnesses. The provision has caused endless trouble, but did something to ameliorate the English law of treason.
Certain changes were made in the law in progress of time. One was that the firstborn son should have a double portion. The case of the man who died leaving no son, but five daughters, produced the famous judgment that decided the law to be that if a man died leaving no son, his inheritance should pass to his daughters; if no daughters, to the deceased’s brothers; if no brothers, then to the brothers of the deceased’s father; and if these heirs fail, then unto his kinsmen that are next to him of his family. This was afterwards the pure Roman law of agnatic inheritance, except that in that law as it originally was, the daughters would not take a part. It is necessarily the law where kinship was traced only in the father’s line. It is noticeable in Deuteronomy that there is no commercial or mercantile law, no provision as to all the varied contractual situations, which had appeared in the Babylonian law. For the most part there is no hint of a commercial community. Everything provided for suits the situation of a nomad tribe passing into a settled agricultural community.
But the greatest and most distinct triumph of the Jewish law was the final emergence of the individual. Quoted above is the much later Hindu statement. As we have seen, all the law of liability had been based upon the liability of the family or kindred. The innocent son was put to death for his father’s fault; but at last came the law: “The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin.” No one can imagine how great an advance this was in all the criminal law or in private law where the lex talionis could be applied. At last, clearly and fully, the individual emerged as having rights of his own. No longer was the family treated as a whole in questions of responsibility.
There were defects like superstitious provisions of the law as to putting witches and wizards to death, or the stoning of a man or woman that hath a familiar spirit; but the English burned Joan of Arc at the stake, and all the excuse which they had was something of this character. The law of the Jews was entirely reasonable for their condition. Thus the general rule as to liability of an owner for an injury caused by a domestic animal was based upon the owner’s knowledge of the dangerous character of the animal. In this connection appears too what became in English law the deodand; that is to say, the thing animate or inanimate which became forfeited because it had caused a death. In an English tin mine in the time of Richard II (1377–99 A. D.), a piece of rock fell from the roof and killed a man. The King, treating the whole mine as forfeited, granted it away to a third party. The King’s grant caused a lawsuit where some fine distinctions were made.
The Hebrew law of general liability for animals ran in these terms: “If an ox gore a man or woman that they die, then the ox shall be surely stoned, and his flesh shall not be eaten [this is a taboo]; but the owner of the ox shall be quit.” But if the ox was known to the owner to be dangerous and it was not kept in, the penalty was that the ox should be stoned and the owner put to death; but if a sum of money was imposed (here appears the money composition) he shall pay it, and likewise for a son or daughter. Should it be a servant killed, the payment was thirty shekels of silver and the ox to be stoned to death. The law as to a pit was that the owner of the pit must make good any loss, ox for ox, ass for ass, and the owner also retained the right to keep the injured animal. If an ox injured another ox, the owners of the two oxen were to divide the money arising from the sale of the wrongdoing ox and from the sale of the dead ox; but if the ox pushed in time past and was not kept in, the owner of the pushing ox must pay ox for ox. If a fire was kindled and it spread, the kindler of the fire must pay all the damage.
If goods were stolen from a bailee in possession of them, the judges were required to decide the matter, if the thief was not found. That is to say, each case depended upon its own circumstances. The law for mercantile transactions developed when the Jews became traders, as they did through all the cities of the Levant. But aside from the law, the peculiar value of the Hebrew Scriptures was that they taught an elevated system of morals, improving from remote times until the late period of the apocryphal book of Ecclesiasticus, or the Wisdom of Sirach. In future ages the Scriptures were to prove of incalculable value by producing higher conceptions of morality, and by inculcating obedience to the commands of righteousness. With the triumph of Christianity in the Roman Empire every rule of the Scriptures that was legal passed over into the later Roman law and then on to the English law as the divine revealed law of God, while the late and fully developed Jewish monotheism and the abhorrence of idols have molded the Protestant religions since the days of Luther. When that great ruler Ptolemy Philadelphus was increasing his library at Alexandria, he brought from Palestine seventy-two learned men to furnish him with a translation of the Hebrew law into Greek. He and his scholars were much impressed by the contents of these laws. From that time much knowledge of the Hebrew law became current in the Hellenic world.
It is perhaps needless to say that the later developments of Hebrew law and further illustrations of that law, growing more and more enlightened, making up a new and greater body of law, with the commentaries both upon the texts of the Mosaic law and upon the customary law, not considered Mosaic or divine, are not noticed here because those parts of the Jewish law-writing did not have any appreciable effect upon the main stream of legal development. The insistence upon the Deity, the one God, so powerful an influence in other systems of law, is the part of the Jewish law to which the later reviser, uttering a final eloquent injunction, put into the mouth of Moses, is referring, when he says: “What nation is there so great that hath statutes and judgments so righteous as all this law which I set before you this day?...Keep therefore and do them; for this is your wisdom and your understanding in the sight of the nations, which shall hear all these statutes and say, Surely this great nation is a wise and understanding people.”
As long ago as Josephus’s book on the Antiquities of the Jews and his Reply to Apion, and the sketch of his own Life, it was pointed out that the ideas of the Jewish law were having their effect upon the Greek and Roman law. Certainly the greatest single principle developed by the Jewish priests in the realm of law was that each individual shall stand before the law responsible only for his own acts and the acts of those for whom he has voluntarily made himself responsible. Both morality and law were transformed when they cast off the primitive inheritance of a solid kindred liability and substituted the reasoned and rational basis of individual liability. This, from the legal standpoint, deserves to be called the highest contribution of the Hebrew law.
For the general history of ideas, and especially of ideas in the realms of religion, the Jewish race produced that conception of immediate contact between man and the Deity, which no longer required the intervention of a priest to placate the Deity. The insistence in the New Testament upon the fatherhood of God and the brotherhood of man has in it nothing new or original. The Hebrew people had been passed through the fire and had come out of that purifying experience with enlarged ideas of mankind. The doctrines and writings of the Stoic philosophers would have furnished the world with the conception of the one God, but their cold and austere ideals lacked that touch of profound emotion toward God, with which the Psalms and the last part of the book called Isaiah, supplemented by the New Testament, were to enrich and elevate the spiritual experiences of the race, and to feed that growing conception of individual responsibility that has done so much to ameliorate the harshness of inherited rules of law.
[1. ]St. Ambrose’s rebuke of the Emperor Theodosius is discussed further infra at p. 188.