The Story of Law - John M. Zane

Скачать книгу

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.

      WHEN LAW AMONG THE GREEKS is reached we are at a period where jurisprudence is first begun to be studied. In some respects Grecian law (if it can be said in any true sense that law governed among them) from about 500 B.C. begins to take on in outward appearance a modern dress. To the talented portion of this race, with its intense brilliancy of intellect, so much is owed that it is possible to feel indulgence even for their mistakes in regard to matters in which they should not have failed. The tone of the great Roman advocate, the younger Pliny, toward the Greeks is admirable. He is writing to his friend Maximus, who is about to go to Greece as governor under the Emperor Trajan at the beginning of the second century of the Christian era. Pliny exhorts him:

      Remember that you are sent to that real and genuine Greece, where politeness and learning took their rise. You are sent to regulate the condition of her cities, to a society of men who breathe the spirit of true manhood and liberty, who have maintained their natural rights by courage, virtue, civil and religious faith. Revere their ancient glory and their very antiquity which, venerable in men, is sacred in states. Give to every one his full privileges and dignity. Even indulge his vanity. Remember that they gave us laws. Remember you are going to Athens and Sparta, and to deprive such a people of the declining shadow of liberty would be cruel, inhuman and barbarous.

      But just as impressive is the colloquy upon Athens at the opening of the fifth book in Cicero’s De Finibus, a none too lively work. It is almost a duty to quote the words of that greatest of all the men who have ever given themselves to the practice of law. He is speaking at a time when Athens had declined from her great estate to become a part of a Roman province, but was still the school and university of the civilized world. Cicero and his brother Quintus, his cousin Lucius Cicero, his lifelong friend Pomponius, better known as Atticus, and Marcus Piso, of a great Roman family, are studying at Athens. They had walked out of the city one afternoon from the Dipylon Gate to the Academy, to that

      olive grove of Academe,

      Plato’s retirement, where the Attic bird

      Trills her thick-warbled notes the summer long.

      These young college students, as we should say, are talking of their surroundings. One points to the chair whence once had come the golden voice of Plato; another says that he has just been looking at the village of Colonus near Athens and thinking of the noble choral ode of Sophocles and the lovely lines where the blind Oedipus, led by his daughter, comes to that hamlet, shadowed under the gray-green foliage of its olive trees. The youngest of them had visited the Bay of Phalerum and had walked on the shore, where Demosthenes had declaimed amidst the roll of the waves, and trained his voice to stem the clamor and uproar of the Athenian Assembly. Coming back he had turned out of his way to stand at the tomb of Pericles. Another had been in the gardens of Epicurus. Cicero himself speaks of the breadth of vision that comes from travel, and he points to the Hall of Carneades and muses on how it seems to be grieving for that mighty intellect and the sound of the voice now still. They talk of how endless are the scenes in Athens, where one can hardly go to a place where he does not feel that he is treading on historic ground. Piso adds that, whether it arises from a natural instinct or from an illusion, we are more touched when we see the places associated with great men or noble deeds than when we are told of them or read about them. To-day our students in the American School at Athens must often speak in much the same sense. This is all the more reason why one should feel indulgence for those to whom

Скачать книгу