The Permanent Elements in the Hebrew Law

Baldwin, Edward Chauncey
International Journal of Ethics 25 (April 1915): 360-71.


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The Hebrew law, though the most neglected outgrowth of ancient Hebrew thought, is by no means least important. Indeed it is in many respects the most amazing product of the genius of this remarkable people. Its most astonishing characteristic is its universality—the fact that it contains so many elements of permanent value for the ordering of human relations. If any one doubts that the Hebrew law was to a marvelous degree adaptable to conditions wholly different from those it was originally designed to meet, he will find a backward glance at our colonial history sufficiently convincing.
The oldest and most reliable authority upon New England colonial history is Governor John Winthrop. In his History of New England from 1630-1649, written in the form of a diary, he tells us, under date of May 22, 1639, about the origin of the legislation of Massachusetts colony. “The people,” he says, “had long desired a body of laws, and thought their condition very unsafe, while so much power rested in the discretion of magistrates. . . . At last it was referred to Mr. Cotton and Mr. Nathaniel Warde, and each of them framed a model, which was presented to this general court, and by them committed to the governor and deputy and some others to consider of, and so prepare it for the court in the third month next.” More exact information as to the nature of this code or “model” is furnished us by another contemporary document—Abel being dead yet Speaketh; or the Life and Death of Mr. John Cotton (London, 1658) by John Norton of Ipswich. Here we read: “In order whereunto the Court considering That that people of God, all the members of which Republic were Church-members, were to be governed
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conformably to the Law of God, desired Mr. Cotton to draw an Abstract of the Judicial Laws delivered from God by Moses, so far forth as they were of moral (i.e. of perpetual and universal) equity. Which he did, advising them to persist in their purpose of establishing a theocraty (i.e. Gods government) over Gods people.”
Of the two clergymen, Cotton and Ward, who separately formulated codes for the colony, the latter had the advantage of having received in England a thorough legal training. Naturally, he based his code mainly upon the English common law, though, in addition, he adapted many features of the Hebrew law. How much he owed to the latter becomes at once apparent upon an examination of his code as it was finally (in 1641) adopted under the title of “The Body of Liberties.” The following is a transcript of the section headed “Liberties of Servants.” The comment in parentheses is my own.
85. If any servants shall flee from the Tiranny and crueltie of their masters to the howse of any freeman of the same Towne, they shall be there protected and susteyned till due order be taken for their relife. Provided due notice thereof be speedily given to their maisters from whom they fled. And the next Assistant or Constable where the partie flying is harboured. (This is obviously an adaptation of the Hebrew law regarding runaway slaves as given Deut. 23: 15-16. This law forbade those with whom an escaped slave had taken refuge to return him to his master.)
86. No servant shall be put of for above a yeare to any other neither in the life time of their maister nor after their death by their Executors or Administrators unlesse it be by consent of Authoritie assembled in some Court, or two Assistants. 87. If any man smite out the eye or tooth of his man servant, or maid servant, or otherwise mayme or much disfigure him, unlesse it be by meere casualtie, he shall let them goe free from his service. And shall have such further recompense as the Court shall allow him.
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(This is a paraphrase of the Hebrew law, Ex. 21: 26-27, which states that bodily injury at the hands of the owner that caused the loss of an eye or a tooth entitled the slave to immediate manumission.)
88. Servants that have served diligentlie and faithfully to the benefitt of their maisters seaven yeares, shall not be sent away emptie. And if any have bene unfaithfull, negligent or unprofitable in their service, notwithstanding the good usage of their maisters, they shall not be dismissed till they have made satisfaction according to the Judgement of Authoritie.
(This is plainly an adaptation of the Hebrew law providing for the freeing of Hebrew bondmen in the sabbatical year of their service, Ex. 21: 2-6. They were entitled to a parting gift. The gift could not be made in money, but must be from the flock, the threshing floor, and the wine-press, Deut. 15: 12-15.)
Equally Hebraic are the laws governing offenses punishable by death. Section 94, headed “Capitall Laws,” reads as follows:
1.
Deut. 13.6.10 Deut. 17.2.6 Ex. 18.10
If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death.
2.
Ex. 22.18 Lev. 20.27 Deut. 18.10
If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit) They shall be put to death.
3.
Lev. 24.15.16
If any person shall Blaspheme the name of god, the father, Sonne or Holie ghost, with direct expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death.
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4.
Ex. 21.12 Numb. 35.13. 14.30.31
If any person committ any wilfull murther, which is manslaughter, committed upon premeditated mallice, hatred or Crueltie, not in a mans necessarie and just defense, nor by meere casualtie against his will, he shall be put to death.
5.
Numb. 25.20. 21 Lev. 24.17
If any person slayeth an other suddainely in his anger or Crueltie of passion, he shall be put to death.
6.
Ex. 21.14
If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death.
(The seventh, eighth, and ninth sections, which are in effect the Hebrew laws against various forms of unchastity, I omit.)
10.
Ex. 21.16
If any man stealeth a man or mankinde, he shall surely be put to death.
11.
Deut. 19.16. 18.19
If any man rise up by false witnes, wittingly and of purpose to take away any mans life, he shall be put to death.
12.
If any man shall conspire and attempt any invasion, insurrection, or publique rebellion against our commonwealth, or shall indeavour to surprize any Towne or Townes, fort or forts therein, or shall treacherously and perfediouslie attempt the alteration and subversion of our frame of politie or Government fundamentallie, he shall be put to death.
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The Connecticut Colony, like Massachusetts, adopted in part the Hebrew torah. In 1637, representatives of the settlements at Windsor, Hartford, and Wethersfield, the aggregate population of which was then about eight hundred souls, met and adopted a constitution—”the first written constitution,” Fiske says, “that created a government.” Similarly, Bryce calls it “the oldest truly political constitution in America.” At this convention, the delegates solemnly covenanted “in our Ciuell Affaires to be guided and gouerned according to such Lawes, Rules, Orders, and decrees as shall be made, ordered, & decreed.” Gradually thereafter, the Connecticut civil code was formulated. By 1642, there were twelve capital laws. These agree word for word with those of the parent colony, Massachusetts, which, it will be remembered, are those of the Hebrew law. In 1646, the general court commissioned a certain Mr. Ludlow “to take some pains in drawing forth a body of Lawes for the gouernment of this commonwealth.” This code, known as “Mr. Ludlowe’s code,” was formally “concluded & established” by the general court in May, 1650. It raised the number of the capital laws to fourteen, two being added to the list established in 1642. The two added are as follows:
13. If any Childe or Children aboue sixteene yeares old and of sufficient vnderstanding shall Curse or smite theire naturall father or mother, hee or they shall bee put to death, vnless it can bee sufficiently testified that the Parents haue beene very vnchristianly negligent in the education of such Children, or so prouoake them by extreame and cruell correction that they haue beene forced therevnto to preserue themselues from death (or) maiming. Exo. XXI: 17; Levit. XX. (9); Exo. XXI. 15. If a man haue a stubborne and rebellious sonne of sufficient yeares and vnderstanding, viz: sixteene yeares of age, which will not obey the voice of his father or the voice of his mother, and that when they haue chastened him, will not harken vnto them, then may his Father and Mother, being his naturall parents, lay hold on him and
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bring him to the Magistrates assembled in Courte, and testifie vnto them that theire Sonne is stubborne and rebellious and will not obey theire voice and chastisement, but liues in sundry notorious crimes, such a Sonne shall bee put to death. Deut. XXI. 20, 21.
The third of the New England colonies to adapt to its uses the Hebrew law was New Haven. For a year after its establishment in March, 1638, the New Haven colony had no body of laws except a “Plantation Agreement.” According to this “agreement,” we are told (New Haven Colony Records, Vol. I., p. 191) that “It was aggreed, concluded & setled as a fundamentall law, not to be disputed or questioned hereafter, that the judiciall lawes of God, as they were deliuered by Moses, & expownded in other parts of scripture, so farre as they are a fence to the morall law, & neither tipicall, nor ceremoniall, nor had refference to Canaan, shalbe accounted of morrall & binding equity and force, and as God shall helpe shalbe a constant direction for all proceedings here, a generall rule in all courts of Justice how to judge betwixt partie and partie, & how to punish offenders, til the same may be branched out into perticulers hereafter.”
The dream of the founders of the commonwealth was to establish a theocracy. Of these founders, the most influential in formulating the ideals of the colony was John Davenport. The son of a mayor of Coventry, an ordained clergyman of St. Stephen’s Church, Coleman Street, London, he had offended King James by reproving him for profanity, and had come to New Haven in 1639, where he remained for thirty years one of the most influential men in the colony. His ideals of government are set forth in his Discourse about Civil Government in a New Plantation, 1638. The Discourse is a defense of theocracy—an attempt to prove the best form of government to be that in which “(1). The people that have the power of chusing their Governors are in Covenant with God. (2). Wherein the men chosen by them are godly men, and fitted with a spirit of government: (3.) In which the Laws they rule by
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are the Laws of God: (4.) Wherein Laws are executed, Inheritances allotted, and civil differences are composed, according to Gods appointment: (5.) In which men of God are consulted with in all hard cases, and in matters of Religion, is the Form which was received and established among the people of Israel whil’st the Lord God was their Governor as the places of Scripture alledged shew; and is the very same with that which we plead for. . . .”
In view of such a declaration from one of the leaders of the colony, it is not surprising to find that the government of the New Haven colony was from the beginning a theocratic one. The community was not to be a state but a church. No man could enjoy the full rights of citizenship unless he was a church member. “And for the due carrying on of all affaires according to God (I quote from the New Haven Colony Records, Vol. I., p. 191) it is also agreed, concluded & setled for a fundamentall law as aforesaid, that noe man of what degree or quality soever shall at any time be admitted to be a free burgess within this plantation, but such planters as are members of some or other of the approved churches of New England, nor shall any but such free burgesses have any vote in any election, nor shall any power or trust in & for the ordering of any publicque civill affaires, be at any time put into the hands of any other then such members.” Trial by jury was rejected as lacking scriptural authority. For the same reason, the English laws of entail and of primogeniture were avoided. And it was formally declared “that the Word of God shall be the only rule attended unto in ordering the affaires of Gouernment.”
Consistently with such a declaration, the first printed code of the colony was formulated. When in 1665 the general court of the colony ordered that “some able, judicious, and Godly man” should be appointed to form a code of laws for the colony, and Governor Eaton had been selected for the purpose, the general court desired him, “for his own instruction, and to aid him in his arduous task,” to examine the laws of the colony of Massachusetts, and
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also the above-mentioned Discourse on Civil Government in a New Plantation by John Davenport. Both these documents Eaton seems to have perused to some purpose, for the resultant code1 is very much like the Massachusetts code, except that it is in tone even more scriptural and more theocratic. The capital laws of the New Haven colony were borrowed almost word for word from those of the Massachusetts colony. The scripture citations are very numerous, every detail of colonial organization being supported by as many references as if it were a controverted theological doctrine. Illustrative of the scriptural and theocratic tone of the code are the first two paragraphs defining the duties of the general court, which read as follows:
1 This court thus framed, shall first, with all care and diligence, from time to time, provide for the maintenance of the purity of Religion, and suppress the contrary, according to their best light and directions from the Word of God. Psal. 2: 10, 11, 12. 1 Tim. 2: 2.
2 Secondly, though they humbly acknowledge that the supreme power of making laws, and of repealing them, belongs to God only, and that by him this power is given to Jesus Christ as Mediator, Math. 28: 19. Joh. 5: 22. And that the Laws for holinesse and Righteousnesse are already made, and given us in the scriptures, which in matters morrall, or of morrall equity, may not be altered by humane power or authority; Moses only shewed Israel the Laws and statutes of God, and the sanedrim, the highest Court among the Jews, must attend those Laws. Yet civill Rulers and Courts, and this Generall Court in particular (being intrusted by the freemen as before) are the ministers of Good people; and have power to declare, publish, and establish, for the plantations within their Jurisdictions the Laws he hath made, and to make, and repeale
1 Five hundred copies were printed for the use of the colony. The title page reads: New Haven’s Settling in New England and some Laws for Government. Published for the use of that Colony. London, Printed by M. S. for Livewell Chapman, at the Crowne in Popes-head Alley, 1656.
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orders for smaller matters not particularly determined in scripture, according to the more Generall rules of Righteousnesse, and while they stand in force, to require due execution of them. Esay. 33: 22. Deut. 5: 8. Deut. 17: 11. Rom. 13:4.
More than once the Court of Magistrates is exhorted, “when the case requires it, . . . to consider the mind of God as it is revealed” in numerous passages of scripture duly cited for their enlightment.
In explanation of such reverence for the Hebrew law as was shown by the New England colonies, it is not sufficient to say that the colonists were Puritans, and therefore pledged to regard the Bible as the final authority in faith and morals. The colonial leaders were sensible men. Their conduct of inter-colonial affairs shows clearly that, instead of being unpractical fanatics or even doctrinaires, they were astute politicians, in the best sense of that term, and clear-sighted statesmen, skilled in the management of public matters. As such, they chose to adapt the Hebrew law to contemporary conditions, not because it was sanctioned by scriptural authority (though, naturally, this consideration influenced their choice), but because they recognized in the torah certain elements of permanence.
Such a recognition even a cursory examination of Hebrew law will amply justify. It was admirably fitted to become the corpus juris of the new land, not only because of its emphasis upon the close connection between the religious and moral life, but because it embodied the essential principles of popular liberty.
By no other ancient code was human life so carefully safeguarded, simply because by no other ancient people was the sacredness of human life so fully recognized. The presence in the Deuteronomic code of the law regarding house-building, “Thou shalt make a battlement for thy roof that thou bring not blood upon thy house, if any man fall from thence” (Deut. 22:8), and the law, equally unparalleled in other ancient legislation, regarding homicide
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by an unknown person (Deut. 21: 1-9), is to be accounted for by the Hebrew sense of the sacredness of human life.
This finds expression, also, in Israel’s penal code. As compared with the one hundred and sixty felonies mentioned by Blackstone in his Commentaries on the Laws of England (1769) as punishable by death, the only capital crimes among the Hebrews were varieties of three offenses—murder, unchastity, and idolatry. It is noteworthy in this connection that the New England colonists by their partial adoption of the Hebrew law, reduced the number of capital crimes, which at that time in England were thirty-one, to twelve.
To Israel’s sense of the sacredness of human life must be ascribed, also, the custom of treating humanely even condemned criminals. Cruel and horrible punishments, such as crucifixion as practised by the Romans and Carthaginians, the mutilations in vogue among the Egyptians as punishment for parricide, the impalement used by the Persians, the boiling in oil resorted to by several ancient peoples, the burying alive, not unknown among the Romans, and the disembowelling and quartering of comparatively recent times in England, were all unknown in ancient Israel.
The Hebrews were the only people of antiquity to mitigate the severities of the death penalty by rendering it as painless as possible. Just before his execution, the condemned criminal was given a stupefying draught composed of myrrh and frankincense in a cup of sour wine. This produced a considerable degree of anaesthesia, and a more or less complete indifference on the part of the convict to his fate. The furnishing of the death-draught was in Jerusalem the office of the women. In other towns the materials were required to be purchased at public expense.
The Hebrew law not only reverenced and protected human life, but it carefully guarded the rights of property. Stolen goods were to be returned fivefold (Ex. 22: 1,3). In default of such restitution, the thief was to be sold as a bondman till the sabbatical year released him. Most
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explicit and considerate of the rights of the property owner were the regulations governing fiduciary responsibility (Ex. 22: 7-15). If it could be shown that “money or stuff” entrusted to the care of another was lost through the fault of the trustee, he was obliged to “pay double unto his neighbor.” Equally stringent were the laws specifying the liability of those who destroyed property by either carelessness or neglect (Ex. 22: 5, 6).
Perhaps the surest guarantee of the liberty of the Hebrew citizen was in the laws governing the ownership of land. The land was inalienable, and it belonged to God. This principle of land-ownership is clearly stated in the Levitical law (Lev. 25:23). “And the land shall not be sold in perpetuity; for the land is mine: for ye are strangers and sojourners with me.” If a man became poor, he might sell his land, but reserving the right to redeem it either through his nearest relative, or by his own efforts. Should it not be possible for either him or his family to re-purchase the land, it would remain in the hand of the purchaser till the jubilee year, when it would automatically revert to the original owner (Lev. 25: 23-28). Such a system of land tenure avoided the two opposite extremes—of state socialism that treats the land as belonging to the state, and of a selfish individualism that permits unscrupulous individuals to acquire vast estates and virtually to dispossess their poorer neighbors. Now, history shows nothing more clearly than that those who own the territories of a state will exercise the strongest influence over the state’s public affairs. It is possible for the land to be in the possession of one, of the few, or of the many. If the ruler owns the land, then those who cultivate the soil will be wholly subject to his will; and the government will be an unlimited monarchy. If the ownership of the land is vested in the few, the real power of government will be in the hands of an aristocracy, while those who till the soil will be mere vassals. If, however, the land be the inalienable possession of the citizens, the true power and authority of government of the state will be in its citizens; and
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the state will be a true democracy. Since the latter was the case in ancient Israel, the sovereignty resided in the whole body of the people.
In the Hebrew state there was, theoretically at least, absolute equality among its citizens. There was absolutely no recognition of a privileged class. The institution of the priesthood, and the setting apart of the tribe of Levi for their peculiar function, with the consequent development of a sacerdotal and literary aristocracy, was a late phase of legalism, and was entirely opposed to the principles of the early codes. In contrast to the polity of ancient Egypt, for example, there were to be recognized in Israel no hereditary castes. No dignities nor special privileges were to be assigned to one class, and no inherited inferiority to another. All were to be equally privileged, and all were amenable to the same duties.
Because Hebrew law, owing to its emphasis upon the sacredness of human life, upon the property rights of the individual, and consequently upon the equality of its citizens, contained the germs of modern democratic freedom, it was found suited to become, with some modifications, the corpus juris of the colonists of the new world. That in three instances it furnished a practical working code of laws affords convincing proof that Hebrew law contained elements of permanence. Such universality and timelessness are due to its having been an expression of fundamental laws of human life.
Edward Chauncey Baldwin.
University of Illinois.