It appears that the Jews once had the old system of the composition or satisfaction given by the slayer for the killing, but murder had now become rationalized into, first, our murder or premeditated malicious killing; second, our manslaughter upon a sudden quarrel without malice; and, third, accidental killing. It became recognized that this offense of murder was no longer a private wrong to be settled by a composition or customary payment, for it was provided that the murderer must be put to death. No composition or satisfaction could be made for it, nor could there be any composition allowing a slayer to come out of a city of refuge. It need not be pointed out that the law of sanctuary in English law and all our present distinctions in the law of homicide trace directly back to the Semitic law. Connected with the law of homicide was that of assault and battery, but this injury was to be compensated for by paying for loss of time and by causing the injured to be thoroughly healed.
The seventh command shows the fully developed right in the head of the family to the fidelity of his wife. Adultery as an offense, however it may be rationalized, is really in the paramour an invasion of the husband’s assumed right to exclude others, which is the legal definition of property. It was an offense in which then and now a married woman must be concerned. The Jews had none of the looseness in sexual ideas of the early Babylonians. If a woman married who was not a virgin, she should be stoned to death. The offense of adultery was one committed by a wife. It was not an offense in the married man unless he was the accomplice of a married woman; but modern law has given the wife a reciprocal right of exclusive possession. The law was that if a man committed adultery with another’s wife, he should be put to death along with the erring wife. Fornication with an unbetrothed and unmarried woman required the offender to marry her, but if the father of the maid refused to allow the marriage, the offender was bound to pay money to the father of the damsel. The amount was the ordinary dowry of a virgin. This is our common law of the father recovering damages for seduction, given by the legal fiction of loss of service. Fornication with a betrothed maiden was treated as adultery. Fornication with a betrothed bondmaiden—i.e., a slave—was not punished by death but by scourging. The priests were certainly sound on the subject of conjugal fidelity in the wife.
The eighth command, against stealing, recognized the fully developed idea of property. The command was carried further in the injunction which is much less primitive in tone: “Ye shall not steal, neither deal falsely” with one another. “Thou shall not defraud thy neighbor.” The idea of stealing is carried into fraud and deception. All stealing could be compensated at the rate of five oxen for an ox, and four sheep for a sheep. Stealing was as elsewhere a private injury. If the thief were found with the property, he paid double. There was no question that there was a clear right to kill the burglar, as to which some doubt has been made under our law.
The ninth command is one of mingled law and morality. It may be either an injunction to be honest in social relations or an injunction to speak the truth as a witness. The law in Exodus enjoins against raising a false report, or being an unrighteous witness, and in another place it is said: “Keep thee far from a false matter.”
The tenth commandment is an injunction of morality against a state of mind. It is not a workable law, just as the injunction to “love thy neighbor as thyself,” found in the Mosaic law, is not a workable law. Except where a belief is made a crime, the law deals only with acts.
The Ten Commandments do not cover, except inferentially, certain well-known subjects in law. In those other matters there appears in Jewish law a spirit of great liberality. If we take the condition of slavery, the master who caused a loss of an eye or a tooth to his servant thereby made the servant free. If a Jew was sold as a slave to another Jew, such a slave, man or woman, must be released at the end of the sixth year. The law proclaimed that the escaped slave should not be delivered to the owner. This divine law could have been quoted against our Fugitive Slave Law. Kidnapping to sell into slavery was visited with the death penalty. Perhaps the release to be given to debtors at the end of every seventh year was only a counsel of perfection, as was no doubt the general injunction to lend to the poor. Both injunctions affected only Jews as the recipients of bounty. Charity was strongly enjoined as a duty. In spite of the jealousy toward other gods and the endogamous practice of never marrying with any other tribe, the liberal Semitic law as to strangers was enjoined. The provision as to the one law for homeborn and stranger sojourning, supplemented by the extension of the right to claim a city of refuge, was given to the stranger. The stranger should not be vexed, but he “shall be unto you as one born among you, and thou shalt love him as thyself.”
Just weights, just balances and just measures were enforced by the law. Fields should not be gleaned but should be left for the poor and for the cattle. “Thou shalt not muzzle the ox when he treadeth out the corn” is an oft-quoted duty. “Do not remove thy neighbor’s landmark” became a curse in the minatory law. In the vineyard the passer-by might eat as he pleased, but he could not carry anything away. Land must lie fallow every seventh year, so the beasts could eat therein, and in the vineyard and oliveyard the crop was not to be gathered every seventh year. The employer was commanded to pay his laborer at the end of every day. The man who had a new wife was not to go out to war.
Witnesses were used in legal disputes. There was none of the old primitive methods of proof. The original rule which passed into the canon law and into our law of overcoming the effect of a sworn answer in equity, and into the law of treason, was that two or more witnesses were necessary to make the proof. This meant two eyewitnesses. The provision has caused endless trouble, but did something to ameliorate the English law of treason.
Certain changes were made in the law in progress of time. One was that the firstborn son should have a double portion. The case of the man who died leaving no son, but five daughters, produced the famous judgment that decided the law to be that if a man died leaving no son, his inheritance should pass to his daughters; if no daughters, to the deceased’s brothers; if no brothers, then to the brothers of the deceased’s father; and if these heirs fail, then unto his kinsmen that are next to him of his family. This was afterwards the pure Roman law of agnatic inheritance, except that in that law as it originally was, the daughters would not take a part. It is necessarily the law where kinship was traced only in the father’s line. It is noticeable in Deuteronomy that there is no commercial or mercantile law, no provision as to all the varied contractual situations, which had appeared in the Babylonian law. For the most part there is no hint of a commercial community. Everything provided for suits the situation of a nomad tribe passing into a settled agricultural community.
But the greatest and most distinct triumph of the Jewish law was the final emergence of the individual. Quoted above is the much later Hindu statement. As we have seen, all the law of liability had been based upon the liability of the family or kindred. The innocent son was put to death for his father’s fault; but at last came the law: “The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin.” No one can imagine how great an advance this was in all the criminal law or in private law where the lex talionis could be applied. At last, clearly and fully, the individual emerged as having rights of his own. No longer was the family treated as a whole in questions of responsibility.
There were defects like superstitious provisions of the law as to putting witches and wizards to death, or the stoning of a man or woman that hath a familiar spirit; but the English burned Joan of Arc at the stake, and all the excuse which they had was something of this character. The law of the Jews was entirely reasonable for their condition. Thus the general rule as to liability of an owner for an injury caused by a domestic animal was based upon the owner’s knowledge of the dangerous character of the animal. In this connection appears too what became in English law the deodand; that is to say, the thing animate or inanimate which became forfeited because it had caused a death. In an English tin mine in the time of Richard II (1377–99 A.D.), a piece of rock fell from the roof and killed a man. The King, treating the whole mine as forfeited, granted it away to a third party. The King’s grant caused a lawsuit where some fine distinctions were made.
The Hebrew law of general liability for animals ran in these terms: “If an ox