Arnold stood on precisely the same platform. He did not accuse Count Raymond of heresy or any other crime, nor did Pope Innocent III consider Raymond as morally guilty of a criminal offence, or worthy of punishment. Indeed, the pope would have protected the Count had it been possible, and summoned him before the Fourth Lateran Council for that purpose. But Arnold told his audience that were Raymond allowed to escape there would be an end of the Catholic faith in France. Or, in other words, monastic property would be secularized. Perhaps he was right. At all events, this argument prevailed, and Raymond and his family and people were sacrificed.
Moses promised his congregation that, if they would spare nothing they should enjoy abundance of good things, without working for them. He was much more pitiless than such a man as King David thought it necessary to be, but Moses was not a soldier like David. He could not promise to win victories himself, he could but promise what he had in hand, and that was the spoil of those they massacred. Moses never had but one appeal to make for obedience, one incentive to offer to obey. In this he was perfectly honest and perfectly logical. His congregation and he, finding Egypt untenable, were engaged in a common land speculation to improve their condition; a speculation in which Moses believed, but which could only be brought to a successful end by obtaining control of the dominant energy of the world. This energy, he held, could be handled by no one but himself, and then only in case those who acted with him were absolutely obedient to his commands, which, taken together, were equivalent to a magical exorcism or spell. Then only could they hope that the Lord of Abraham and Isaac would give them “great and goodly cities, which thou buildedst not, And houses full of all good things, which thou filledst not, and wells digged, which thou diggedst not, vineyards and olive trees, which thou plantedst not.” [Footnote: Deut. VI, 10, 11.]
Very obviously, if the theory which Moses propounded were sound the assets which he offered as an inducement for docility could be obtained, at so cheap a rate, in no other way. All Moses’ moral teaching amounted, therefore, to this—“It pays to be obedient and good.” No argument could have been better adapted to Babylonish society, and it seems to have answered nearly as well with the Israelites, which proves that they stood on nearly the same intellectual plane. The chief difficulty with which Moses had to contend was that his countrymen did not thoroughly believe in him, nor in the efficacy of his motor. They always were tempted to try experiments with other motors which were operated by other prophets and by other peoples who were, apparently, as prosperous as they, or even more so. His trouble was not that his followers were nomads unprepared for a sedentary life or a moral law like his, or unable to appreciate the value of the property of a people further advanced in civilization than they were. The Amalekites would have responded to no such system of bribery as Moses offered the Israelites, who did respond with intelligence, if not always with enthusiasm.
The same is true of the Mosaic legislation which Dr. Budde curtly dismisses as impossible to have come from Moses, [Footnote: Religion of Israel to the Exile, 31.] as presupposing a knowledge of a settled agricultural life, which “Israel did not reach until after Moses’ death.”
All this is an assumption of fact unsupported by evidence; but quite the contrary, as we can see by an examination of the law in question. Whatever may have been the date of the establishment of the cities of refuge, I suppose that it will not be seriously denied that the law of the covenant as laid down in Exodus XX, 1, Numbers XXXV, 6, is at least as old as the age of Moses, in principle, if not in words; and this legal principle is quite inconsistent with, if not directly antagonistic to, all the prejudices and regulations, moral, religious, or civil, of a pure nomadic society, since it presupposes a social condition which, if adopted, would be fatal to a nomad society.
The true nomad knows no criminal law save the law of the blood feud, which is the law of revenge, and which prevailed among the Hebrews much earlier. In the early Saxon law it was expressed by the apothegm “Factum reputabitur pro volunte.” The act implies the intent. That is to say, the tribe is an enlarged family who, since they have no collective system of sovereignty which gives them common protection by an organized police, and courts with power to enforce process, have no option but to protect each other. Therefore, it is incumbent on each member of the tribe or family to avenge an injury to any other member, whether the injury be accidental or otherwise; and to be himself the judge of what amounts to an injury. Such a condition prevailed among the Hebrews at a very early period; “And God blessed Noah and his sons, and said unto them: … at the hand of every man’s brother will I require the life of man. Whoso sheddeth man’s blood, by man shall his blood be shed.” [Footnote: Gen. IX, 1, 5, 6.] These customs and the type of thought which sustain them are very tenacious and change slowly. Moses could not have altered the nomadic customs of thought and of blood revenge, had he tried, more than could Canute. It would have been impossible. The advent of a civilized conception of the law is the work of centuries as the history of England proves.
We know not how long ago it was that the law of the blood feud was fully recognized in England, but it had already been shaken at the conquest, and its death-blow was given it by the Church, which had begun to tire of the responsibility entailed by the trial by ordeal or miracle, and the obloquy which it involved, at a relatively early date. For the purposes of the Church and the uses of confession it was more convenient to regard crime or tort, as did the Romans; as a mental condition, dependent altogether upon the state of the mind or “animus.” Malice in the eye of the Church was the virus which poisoned the otherwise innocent act, and made the thought alone punishable. Indeed, this conception is one which has not yet been completely established even in the modern law. The first signs of such a revolution in jurisprudence only began to appear in England some seven centuries ago. As Mr. Maitland has observed in his History of English Law, [Footnote: Vol. II, 476.] “We receive a shock of surprise when we meet with a maxim which has troubled our modern lawyers, namely, Reum nonfacit nisi mens rea, in the middle of the Leges Henrici.” That is to say somewhere about the year 1118 A.D. This maxim was taken bodily out of a sermon of Saint Augustine, which accounts for it, but at that time the Church had another process to suggest by which she asserted her authority. She threw the responsibility for detecting guilt, in cases of doubt, upon God. By the ordeal, if a homicide, for example, were committed, and the accused denied his guilt, he was summoned to appear, and then, after a solemn reference to God by the ecclesiastics in charge, he was caused either to carry a red-hot iron bar a certain distance or to plunge his arms in boiling water. If he were found, after a certain length of time, during which his arms were bandaged, to have been injured, he was held to have been guilty. If he had escaped unhurt he was innocent. Gradually, however, the ordeal began to fall into ridicule. William Rufus gibed at it, for of fifty men sent to the ordeal of iron, under the sacred charge of the clerks, all escaped, which certainly, as Mr. Maitland intimates, looks as if the officiating ecclesiastics had an interest in the result. [Footnote: History of English Law, II, 599, note 2.] At length, by the Lateran Council of 1215, the Church put an end to the institution, but long afterward it found its upholders. For example, the Mirror, written in the reign of Edward I (circa 1285) complained, “It is an abuse that proofs and compurgations be not by the miracle of God where other proof faileth.” Nor was the principle that “attempts” to commit indictable offences are crimes, established as law, until at least the time of the Star Chamber, before its abolition in the seventeenth century. Though doubtless it is the law to-day. [Footnote: Stephen, Digest of the Criminal Law, 192.] And this, although the means used may have been impossible. Moreover, the doctrine is still in process of enlargement.
Very convincing conclusions may be drawn from these facts. The subject is obscure and difficult, but if the inception of the process of breaking down the right of enforcing the blood feud be fixed provisionally toward the middle of the tenth century,—and this date is early enough,—the movement of thought cannot be said to have attained anything like ultimate