LITMIR.BIZ

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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

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