On the Desert - Recent Events in Egypt/Chapter 12

by Henry Martyn Field

 

CHAPTER XII.

 

THE CRIMINAL LAW: WAS IT WRITTEN IN BLOOD?

Mild and humane as were many features of the Hebrew Law, it had one blot which cannot be effaced — its criminal law was the most harsh and cruel that ever stained the annals of mankind. So say its enemies, of whom there are many, for it stands in the way of many proposed changes and "reforms." The advocates of the abolition of capital punishment find it an obstacle, to remove which they must question not only the inspiration of Moses, but his wisdom and humanity. Forty years ago there was a movement in the State of New York to abolish the punishment of death, and its principal advocate made an elaborate report, some pages of which are devoted to the Hebrew legislation.^[1] The Mosaic history, he declares, "is impressed on every page with the stamp of the superhuman — the superhuman at times running into the inhuman." Like every man of intelligence who has made a study of history, he regards not only with curiosity but veneration the most ancient body of laws which has come down to us, while he considers it wholly unfitted to an age and a country so highly civilized as ours. Its punishments are so disproportioned to the offence, that "it would be a perfect insanity of ferocity and fanaticism to think of applying them at the present day." With laws so rigid and unbending, enforced by penalties so barbarous and cruel, he does not hesitate to say that "The Code of Moses was scarcely less sanguinary than that which the Athenian legislator was said to have written in blood!"

This is a formidable indictment, and yet it must be confessed that there is a pretty strong presumption of severity in the number of capital crimes. In America the penalty of death is rarely inflicted except for wilful, deliberate murder. Other offences — such as arson and highway robbery — have been, and in some states still are, capital: but the number has been gradually diminished, till in the actual administration of justice they are reduced to one, and even in that, such is the morbid feeling of juries, that a conviction is with difficulty obtained.

What then shall be thought of a code in which there were seventeen capital crimes? Could a people be said to have emerged from barbarism which could only be kept under control by such sanguinary enactments? But Great Britain was considered a civilized country two hundred years ago, and yet there were on its statute books one hundred and forty-eight offences which were punishable with death, some of which, such as poaching, we should consider as of a very petty character, hardly to be spoken of as crimes.^[2] In the Hebrew laws the punishment of death was always for crimes which struck at the very foundations of society (even though in some cases our milder laws may treat them as light offences), as, for example, disobedience to parents and contempt of parental authority. This was a relic of patriarchal times. The earliest form of human government was the authority which a father assumed over his children. Traces of this primitive rule are found in all ancient nations. Among the early Romans a father had the right of life and death. Much of this spirit lingered among the Hebrews. The parent had not, indeed, absolute disposal of the life of a child. Still his authority was very great. And it is a beautiful feature of the Hebrew law that it made sacred that parental supremacy which nature ordains. It required the young to render to the aged outward marks of reverence: "Thou shalt rise up before the hoary head, and honor the face of the old man."^[3] Whoever struck his father or mother, or cursed them, committed a capital crime.^[4] And in extreme cases, a son who was utterly ungovernable might be given up to the same punishment.^[5] The great lawgiver judged that an incorrigible son was a hopeless member of society, and he was therefore cut off in the beginning of his career to ruin. If under our laws disobedience to parents is made a light offence, it is a question whether that is to be put to the credit of our civilization.

So the Hebrew laws were more strict than ours in protecting female chastity. The nations around the Israelites were sunk in the vices of Sodom. Lest they should be snared in such practices, these horrible pollutions were punished with death. All licentious connection with strangers was a capital offence. In one instance an Israelite who brought a foreign woman into the camp was killed on the spot.^[6] This severity was deemed necessary where the contagion of such examples tempted to frequent offences against purity. Something was conceded to the ancient customs of the East, in tolerating polygamy and divorce. Christ said that for the hardness of their hearts Moses suffered them to put away their wives.^[7] But beyond this hardship, the law surrounded the feebler sex with a wall of fire. Violence to them was a capital crime. So were adultery and incest. In cases of seduction, the guilty party was compelled to make reparation. A man who seduced a maiden was obliged to marry her; and he forfeited the right, possessed by other husbands, of giving her a divorce.^[8] If her father refused to permit the marriage, the seducer was required to pay her a dowry.^[9] Moses was jealous of intermarriage, and specified minutely the limits of kindred within which alliances were prohibited.^[10] The least contact with impurity, however innocent, inferred a ceremonial uncleanness, which had to be expiated by a seclusion and rites of purification. Thus his law refined the popular sentiments and manners and morals. If the sacredness attached to the virtue of woman be a mark of the degree of a people's civilization, the Hebrews were greatly in advance of all other Oriental nations.

The laws for the protection of property were singular, but certainly they were not severe. They were substantially the same which, as we have seen, are still the law of the desert. The main principle was restitution of whatever was wrongfully taken, with ample compensation for loss. Certain property was still further protected. As the Israelites depended for food upon their flocks, he who stole a sheep was compelled to restore fourfold. Oxen were still more necessary for their use in agriculture, as the Israelites had no horses until the time of Solomon. A stolen ox, therefore, was to be restored fivefold. These laws might be easily enforced among a simple agricultural people, where the kinds of property were few, and the same possessed by all.

Lest, however, the thief should make way with the property, and then escape by a poor debtor's oath, the law provided that in case he could not make restitution, he should be sold as a slave to indemnify the man whom he had robbed. This may seem a harsh addition; but when it is remembered that no Hebrew could be sold for more than six years, the punishment will appear singularly mild, especially compared with the law of England, which, until recently, punished with death not only highway robbery, and coining, counterfeiting, and forgery, but even petty larcenies.

Last and greatest of crimes in the scale of ordinary criminal law, are those against the person and against life. Here, if anywhere, we shall find the track of blood. The law is indeed rigid and relentless. Here it is in all its severity: "Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe."^[11] This our Reformer designates as "a part of that savage and monstrous lex talionis so abhorrent to the express injunctions as well as to the whole spirit of Christianity." "The law of revenge constitutes one of the very fundamental principles in the code of Moses — its cruel injunctions sanctioning all the most cruel impulses of the savage heart." It is true that it was sometimes perverted to sanction private revenge — a perversion which was rebuked by Christ, who repudiated it as a rule of individual conduct. It was never intended to legalize hatred, and taking the law into one's own hands. The Old Testament, as well as the New, required a spirit of forgiveness: "Thou shalt not hate thy brother in thine heart; thou shalt not avenge, nor bear any grudge against the children of thy people, but thou shalt love thy neighbor as thyself."^[12]

The only sense in which retaliation was authorized, was as a maxim of law, which helped to fix the measure of punishment for crime. As such it is the first impulse of rude, primitive justice; and it was the mode of punishment which was at once the simplest, the most natural, and the most easily administered. Indeed in many cases it was the only mode possible. How would our modern reformers punish such offences? By putting the malefactor in prison? But where was the prison on the desert? The penalty of imprisonment was unknown among the Hebrews in the time of Moses. Twice a man is said to have been "put in ward" until the Divine sentence could be declared. But except the prison in which Joseph was confined in Egypt, we do not read of such a thing until the period of the Jewish kings. On the desert the only possible penalty was one which could be inflicted on the person of the offender, and here the principle of strict retaliation for the crime committed, rigid as it may seem, was perfectly just. It was right that he who inflicted a wound upon his neighbor should feel himself how sharp and keen a wound may be; that he who ferociously tore his brother's eye from its socket, should forfeit his own.

It is worthy of note that the same law was adopted by the two most enlightened states of antiquity, Athens and Rome. Solon even went further than Moses, and enacted that "whoever put out the only eye of a one-eyed man, should lose both his own."^[13] Is it said this is still pressing the claim of justice beyond the limits of humanity? I reply, the extreme severity of these punishments may have been the only means to restrain the outbreaks of passion and to prevent the acts which required such retribution.

It has been well observed that such a law could be enforced only where there was a general equality among the citizens. In the later days of Rome, when the spoils of many lands had enriched a few powerful families, this principle of strict retaliation was abolished, and fines substituted as a compensation for crime. But as the fine was no punishment to a Roman patrician, the law was no protection to the poor. The old Hebrew justice alone made all men equal. By that, the body of every man was sacred and inviolable. The hard hand of the laborer was as precious as the soft hand of the rich. The injured man might, indeed, take pecuniary indemnity. But he might refuse it, and insist on blood for blood. Certainly this was a stern law; but it afforded a powerful protection to the weak. No man dared to lay upon them the hand of violence.

The laws against murder followed the same inexorable rule — life for life — a law in which there was no element of pardon and pity. But Moses did not create it. It has been the law of the desert for thousands of years. When that old bearded Sheikh of all the Bedaween of Sinai, sitting under the shadow of a great rock in the desert, explained to us the operation of the lex talionis in his tribe, he set before us not only that which now is, but that which has been from the very beginning of time. It was somewhat startling indeed to find that laws and customs which we had supposed to belong only to an extreme antiquity, still lingered among these mountains and deserts. The blood-feud existed among the Hebrews as it did among the Arabs. Kindred in race, they had the same fierce and implacable spirit as the descendants of Ishmael. Their resentments were quick and uncontrollable. No sooner had a man fallen than his nearest relative became the avenger of his blood, whose duty it was to pursue and take the life of the murderer. To a certain extent, Moses was obliged to yield to this impulse of exasperation and of wounded honor. It were easy, indeed, to forbid the Hebrew to seek retaliation; but it was not easy to enforce such a law where it was a point of honor for a man to take justice into his own hands. Here comes the difficult task of the legislator — to deal with popular passions and prejudices, and to soften barbarous customs which he cannot wholly eradicate. It is very interesting to compare the unwritten law of the desert with the commandments of Moses; and to see how, in dealing with usages which he could not wholly suppress, he yet modified them in the interest of justice and humanity. He adopted a novel method to disarm the rage of the injured Israelite, which showed his thorough understanding of the popular passions. He did not forbid directly the attempt to take revenge, but gave full scope to the natural feeling of resentment and indignation. The avenger of blood might follow with swift foot upon the murderer's track, and if he overtook him and put him to death, the law held him free. But at the same time it gave the criminal a chance for his life. Six cities were designated — three on either side Jordan — as Cities of Refuge. They were sacred, as inhabited by the priests, and the avenger of blood could not enter them. They stood on the great highways of the country, and the roads to them were always to be kept open. To these the manslayer might flee. Here he was safe until he could have a fair trial. He was protected from the first burst of the avengers fury till his crime should receive an impartial examination. In case of accidental homicide, or of manslaughter committed in a moment of passion, he was not put to death, although, as a matter of safety, he was compelled to reside for a time in the City of Refuge, since such was the popular feeling that he could not appear abroad.^[14] Thus indirectly, but most effectually, did Moses guard against a sudden and bloody revenge. Even the author of this Report admits that this feature of the Jewish law was "perhaps the utmost mitigation practicable of the existing practice and irresistible passion" of a "semi-savage" race.

On the other hand, if, upon trial, the refugee were found to have committed deliberate murder, this sanctuary should not protect him, but he might be torn from the altar, and given up to justice.^[15] For this great crime the punishment was death, without redemption or commutation, Mahomet allowed the kinsman to take pecuniary compensation for the blood of his relative. But the law of Moses was absolute: "Ye shall take no satisfaction for the life of a murderer."^[16] But the crime must be clearly proved. It must be premeditated, as when one lay in wait for his victim. The circumstances of the act must establish beyond a question that it was a cool, deliberate murder. Thus the death must be caused by a weapon, and not by a blow inflicted with the fist. And lest the accused should be hastily condemned, Moses incorporated in his statutes that provision, which is deemed one of the greatest securities of modern law, that a man should not be convicted of a capital crime on the testimony of a single witness.^[17]

An additional barrier to a rash and unjust decision was the severity with which the law punished perjury. Whoever testified against another falsely, was liable to the penalty of the very crime of which he had accused his neighbor: "Then shall ye do unto him, as he had thought to have done unto his brother. And thine eye shall not pity, but life shall go for life."^[18] With such a retribution in prospect, few would attempt to swear away the life of an enemy. If the accused were condemned to die, when brought to the place of execution, the witnesses against him were required to throw the first stones. The most hardened villain, who had carried a brazen front through all the forms of trial, could hardly support this crowning infamy of being the executioner of an innocent man. He would tremble, and turn pale, and the fatal stone would drop from his perjured hand.

Perhaps nothing shows more the spirit of a law than the modes of execution for those who are to suffer its extreme penalty. Some may think, if a man is to die, it matters little in what way he is put to death. But if it affects not the fate of the criminal, it does matter as indicating the spirit of a people. Barbarous nations generally choose the most savage and cruel modes of punishment. Modern refinement has introduced the scaffold and the guillotine as the least revolting form of execution. Soldiers who disobey orders, have the honor of being shot, while vulgar criminals are hanged.

But it is not two hundred years since torture was laid aside by European nations. James the Second himself witnessed the wrenching of "the boot," as a favorite diversion. The assassin who struck Henry the Fourth, was torn limb from limb by horses, under the eye of ladies of the Court. The Inquisition stretched its victims on the rack. Other modes of execution, such as burning alive, sawing asunder, and breaking on the wheel, were common in Europe until a late period. The Turks impaled men, or flayed them alive, and tied women in sacks with serpents, and threw them into the Bosphorus.

Among the ancients, punishments were still more excruciating. The Roman people, so famous for the justice of their laws, inflicted the supreme agony of crucifixion, in which the victim lingered dying for hours, or even days. After the capture of Jerusalem, Titus ordered two thousand Jews to be crucified! How does this act of the imperial Romans compare with the criminal law of "a semi-savage race"?

Under the Hebrew code all these atrocities were unknown. Moses prescribed but two modes of capital punishment, the sword and stoning. The first was inflicted by the avenger of blood, who, pursuing a murderer, overtook him on the road, and instantly despatched him. The assassin was not beheaded, but thrust through, or despatched in any way. For a criminal who was tried and condemned, the ordinary mode of execution was stoning; certainly the most simple, as it required no scaffold, and no weapon but the stones of the desert, and which must have caused death almost instantly.^[19] If a criminal had been a notorious offender, his body might be burned after death, or hanged on a tree,^[20] as a pirate is hung in chains on a gibbet. Sometimes a heap of stones was thrown over his grave, as over the grave of Absalom.

But while a wretch might be exposed to these posthumous indignities, still, however enormous his crime, its penalty stopped with himself. It was a first principle of the law of Moses, that no child should suffer for a father's crime: a declaration unnecessary in our codes, since no one thinks of punishing a murderer's child, but very necessary in the old Asiatic world, where high crimes were commonly avenged not only by the death of the criminal, but by the extermination of his family. But the law of Moses struck the head of the guilty, and there stopped. No son or daughter was ruined: no hopeless attainder perpetuated the curse to those unborn.

Still further: a ruler who delights in cruelty, will seek, where he does not inflict death, at least to inflict lasting infamy. Despots have often regaled themselves with putting out the eyes of malefactors, or of prisoners of war, or with cutting off their arms or legs, or branding them with a hot iron, so that they should carry a mark of degradation to the grave. But of all this not a trace appears in the laws of Moses. No torture, no branding, no infamous punishment! Stripes were inflicted for petty offences. But this punishment implied no lasting dishonor, as we may be sure from the fact that it was often imposed on the proud Roman soldiers for slight breaches of discipline. Moses limited the number of stripes to forty, for the express reason, that there should not attach to this chastisement too great ignominy: "If the wicked man be worthy to be beaten, the judge shall cause him to lie down, and to be beaten before his face, according to his fault, by a certain number. Forty stripes he may give him, and not exceed; lest if he should exceed, and beat him above these with many stripes, then thy brother shall seem vile unto thee."^[21] So scrupulous were the Jews in regarding this prohibition, that they always stopped one short, and inflicted forty stripes save one. In a single instance only did the law allow maiming, and that was in case of retaliation upon a criminal who had mutilated the body of another.

That the law was not animated by a vindictive spirit, appears from this very significant token — that it discouraged informers. Despotisms are always suspicious and cruel. They send out spies to watch the people. They bribe informers. But the Hebrew government was not vexatious or inquisitorial. It did not harass the people. Moses employed no secret police. He forbade the propagating of malicious rumors: "Thou shalt not go up and down as a tale-bearer among thy people." Informers were not allowed to approach the authorities, except in cases of idolatry or of unknown murder.

Such was the Criminal Law of the Hebrews — stern indeed, but not "inhuman" or unjust. Of course it will not find favor with sentimental apologists for crime: for it was not shorn of its terror by those easy pardons which take away the dread of punishment, and almost the sense of guilt. Moses believed in law, and that law was made to be obeyed. No law-breaker found indulgence from him. He punished disobedience with unsparing severity; the murderer and the blasphemer felt his iron hand. Yet never was a lawgiver more gentle to the children of sorrow, and "to all who are desolate and oppressed." Never did the awful form of justice seem bending with more of compassion for human weakness and infirmity, and for every grief and pain.

And is this the Law that was "written in blood"? No, not in blood, but in tears: for through the sternness of the lawgiver is continually breaking the heart of the man. Behind the coat-of-mail that covers the breast of the warrior, is sometimes found the heart of a woman. This union of gentleness with strength is one of the most infallible signs of a truly great nature: "Out of the strong cometh forth sweetness." So was it with Moses: with a natural delicacy and tenderness, made still more sensitive by his own peculiar experience. His life had been one of many trials, of loneliness and exile, and we can well believe that the thoughtful provisions that appear even in the midst of rigorous statutes, were the suggestions of his own sad memories, the blessed fruit of sorrow. It is this mingling of the tender and the terrible that gives to the Hebrew Law a character so unique — a majesty that awes, with a gentleness that savors more of parental affection than of severity. Crime and its punishment is not in itself a pleasing subject to dwell on; but when on this dark background is thrown the light of such provisions for the poor and the weak, the effect is like the glow of sunset on the red granite of the Sinai mountains. Even the peaks that were hard and cold, look warm in the flood of sunlight which is poured over them all.

Thus uniting the character of the Supporter of Weakness and Protector of Innocence, with that of the Punisher of Crime, Moses appears almost as the divinity of his nation — as not only the founder of the Hebrew state, but as its guardian genius through all the periods of its history. When he went up into Mount Nebo, and stretched out his arm towards the Promised Land, which lay in full view on the other side of the Jordan, he gave to that land the inestimable blessing of laws founded in eternal justice, and not only laws founded in justice, but laws in which humanity was embodied almost as much as in the precepts of religion. None were so poor and helpless but found shelter under the protection of the great Lawgiver. The orphans of many generations looked back to him as their father. The widow in the vale of Sarepta blessed him. The blind that groped by the pool of Bethesda had their way smoothed by his command. The deaf that sat mute amid the laughs of a joyous company, were safe from cruel sneers. The slaves were grateful to him as their liberator, and all classes of the wretched as having lightened the miseries of their condition.

Nor was that Law given to the Israelites alone. It was an inheritance for all ages and generations. That mighty arm was to protect the oppressed so long as human governments endure. Moses was the king of legislators, and to the code which he left rulers of all times have turned for instruction. Thence Alfred and Charlemagne derived statutes for their realms. To that code turned alike the Puritans under Cromwell, who founded the Commonwealth of England, and the Pilgrim Fathers, who founded the Commonwealths of New England.

"Whence had this man this wisdom," surpassing all the ancient sages? Is it said: He was "learned in all the wisdom of the Egyptians," and derived his laws from them? Yet he could not learn from them a wisdom they did not possess. The framework of his government was as unlike that of Egypt, as his rule was unlike that of the Pharaohs. Indeed the Hebrew state would seem to have been constructed on the principle of being in all things the opposite of the tyranny, the injustice, the inequality and the oppression, which were the rule in every Oriental state. The features which most command our admiration are those of which there was absolutely no example. They were wholly original, and must be ascribed to the genius of Moses, if not to the inspiration of God. Hence they who deny the Divine origin of the Hebrew Polity, bear the highest testimony to the splendor of that intellect which created it. If all was the product of one mind, it is the most illustrious instance in history of the power of a great spirit to impress itself on the race. The name of Moses stands alone, as the greatest of antiquity, and the Hebrew law remains as its most wonderful monument.

In harmony with the solitary grandeur of such a life, was the manner of death — alone and on a mountain top. Moses' work was done. Through forty years of desert wandering, he had led the children of Israel to the borders of the Promised Land. Yet that land he was not permitted to enter; it was for others to reap the fruit of his labor. He had nothing more to do but to die. For this he went up into a mountain, from which he saw the sun setting over the Western hills, and knew that the time for his own sun to set, had come. There he died, and "no man knoweth of his sepulchre unto this day."

But what though his place of burial be unknown, his "sceptred spirit" still rules kingdoms and nations that were not born till centuries and millenniums after his dust had mingled and been lost in the boundless soil of Asia. "His line has gone out through all the earth, and his words to the end of the world." His laws have been translated into all the languages of men, and their spirit and influence have affected the legislation of all civilized countries. Thus the empire of the dead extends over the living, and words spoken on the desert more than three thousand -ears ago, which seemed to die away upon the hollow wind, are caught up and passed on from age to age, and from one hemisphere to another, by

"Those airy tongues that syllable men's names
On sands and shores and desert wildernesses."

 

1. Report in favor of the Abolition of the Punishment of Death, made to the Legislature of the State of New York, April 14, 1841, by John L. O'Sullivan.
2. Wines's Commentaries on the Laws of the Ancient Hebrews, p. 263.
3. Lev. xix. 32.
4. Ex. xxi. 15
5. "If a man have a stubborn and rebellious son, which will not obey the voice of his father or the voice of his mother, and that when they have chastened him, will not hearken unto them; then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place; and they shall say unto the elders of his city, This our son is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard. And all the men of his city shall stone him with stones that he die: so shalt thou put evil away from among you; and all Israel shall hear and fear." Deut. xxi. 18-21.
6. Numbers xxv.
7. Matt. xix. 8.
8. Deut. xxii. 29.
9. Ex. xxii. 16, 17.
10. Lev. xviii.
11. Ex. xxi. 23-25.
12. Lev. xix. 17, 18.
13. Michaelis's Commentaries on the Laws of Moses, Vol. III., p. 453.
14. For the fullest account of the Cities of Refuge, see Numbers xxxv.
15. Ex. xxi. 14.
16. Numbers xxxv. 31, 33.
17. Deut. xvii. 6.
18. Deut. xix. 16-20,
19. Later in the Jewish history more cruel forms of punishment were introduced, such as casting headlong from a precipice, and exposure to wild beasts. But for these Moses was not responsible.
20. Deut. xxi. 22.
21. Deut. xxv. 2, 3.