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The Story of Law. John M. Zane
Читать онлайн.Название The Story of Law
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isbn 9781614871811
Автор произведения John M. Zane
Жанр Юриспруденция, право
Издательство Ingram
This is but a very abridged sketch of Babylonian law, but it shows what extraordinary advances had been made by this talented race. Many of the cumbrous practices of the earlier Aryans and Semites had been cast off, and the social organization was far on the highroad to the conditions afterwards attained at Rome. But it is here to be noticed that private personal property had at last emerged as the possession of the individual. Individual responsibility was beginning to dawn in the law. A law of crime as a public offense was dawning. The relaxing effects of a widely extended commerce on the primitive law are very plain. The law has now become complicated. No longer is the casual knowledge of the elders or the priests sufficient in the law. A learned class of judges is manning the king’s courts, and justice has become something that the king owes to all his land. Had it not been for the destructive effects of a conquering race like the warrior tribe of Assyrians with their new disciplined army of bowmen, and for great conquerors like the Assyrian Esarhaddon, Sennacherib, and Shalmaneser, this splendid civilization might have gone on to the finest issues. Even as it was, civilization is such a priceless possession that Assyrian, Chaldean, Persian, Macedonian, and Saracen conquerors left this garden of the world with its law practically unharmed until the unspeakable Turk reduced it to beggary and barbarism.
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