"Far-off Divine event,To which the whole creation moves."
"Far-off Divine event,To which the whole creation moves."
But if we cannot make the Old Testament our law in regard to commerce, we must ask whether the legislation in regard to land has for us any binding force? Viewing it with this question in our minds, I think we must be struck by one fact, this namely, that the universal possession of land which was provided for in Israel andso anxiously maintained is the only provision known against the growth of a wage-earning class largely, if not entirely, at the mercy of the employer. In Greece and Rome the population at first were all settled on their own lands, and it was only when by money-lending the small properties were bought up and turned into huge farms, worked by farm-bailiffs and slaves, that misery began to invade all parts of the social fabric. In mediæval and feudal England, on the other hand, and indeed wherever the feudal system existed, the cultivators, even when they were serfs, had an inalienable right to the land. They could not be evicted if they rendered certain not very burdensome services to the lord. "As long as these dues were satisfied, it is plain the tenant was secure from dispossession," says Professor Thorold Rogers (Six Centuries, etc., p. 44). But in time that system was broken down; and ever since, until within the last half-century, the course of things with the labouring classes in England has been one long descent. So long as the people were attached to the soil, and so long as all alike practised agriculture, as in Palestine under the Mosaic law, Englishmen lived in rough plenty, and were for the most part content. The fifteenth century was the golden age of mediæval agriculture; but a change for the worse came in with the seventeenth, and it continued.[104]
Two measures—the introduction of competitive rents with its corollary, eviction, and the enclosure of the common lands—worked gradually on until they have entirely divorced the workman from the soil, and Professor Cairnes[105]has told us clearly what that means. "In a contest between vast bodies of people so circumstanced and the owners of the soil the negotiation could have but one issue, that of transferring to the owners ofthe soil the whole produce,minuswhat was sufficient to maintain in the lowest state of existence the race of cultivators. This is what has happened wherever the owners of the soil, discarding all considerations but those dictated by self-interest, have really availed themselves of the full strength of their position. It is what has happened under rapacious governments in Asia; it is what has happened under rapacious landlords in Ireland; it is what now happens under the bourgeois proprietors of Flanders; it is, in short, the inevitable result which cannot but happen in the great majority of all societies now existing on earth where land is given up to be dealt with on commercial principles unqualified by public opinion, custom, or law." The result is that the labourers have only their daily wages to depend upon. "They have no means of productive home industry; they have not even a home from which they cannot be ejected at any moment on failure to pay the weekly rent; they have no land, garden, or domestic animals, the produce of which might support them till fresh work could be obtained."[106]We need not wonder that this question of the occupancy of land as the only visible remedy for the hideous social state of the most highly civilised nations of the world is gradually becomingthequestion of our time. A great reaction against the purely commercial theory of land tenure has taken place. The land legislation in Ireland has been based on the doctrines that the nation cannot permit absolute property in land, and that there is no hope for any permanent improvement in the condition of the poor until labourers have land of their own. Now these are precisely the principles of the Scriptural land legislation. Under it landlords with absolute rights over land were impossible, and the rise of a proletariate at themercy of the capitalist was also impossible. It is not so strange, therefore, as it might at first sight appear that the demands of advanced land reformers, as they are voiced in Mr. Wallace's book (p. 192), are,mutatis mutandis, identical with the provisions of the Israelite law. He demands (1) that landlordism shall be superseded by occupying ownership; (2) that the tenure of the holders of land must be made secure and permanent; (3) that arrangements must be made by which every British subject may secure a portion of land for personal occupation at its fair agricultural value; and (4) that in order that these conditions be rendered permanent sub-letting must be absolutely prohibited, and mortgages strictly limited. This essential oneness of view in the modern land reformer and in the ancient law is all the more remarkable that, so far as can be gathered from his book, Mr. Wallace has never regarded the Old Testament from this point of view. He never quotes it, and is apparently quite unconscious that the plan which experience of present evils, and acute and disinterested reflection on them, has suggested to him, was set forth thousands of years ago as the only righteous one.
But this is not by any means the end of the matter. Even if the social reformers of our day could restore society to the conditions set forth so emphatically and so long ago in Israel, history proves that nothing more than a temporary improvement might be accomplished. In Israel, as we have seen, with the decay of religion came the decay of this righteous social state. Human selfishness then shook off the curb of religion, and gave itself without restraint to the oppression of the poor. Have we any reason to believe that now human selfishness would do less? There appears little ground to think so; and though we may believe that without the acceptance of Deuteronomic principles in modern lifewe cannot restrain the growth of poverty, even with Deuteronomic principles embodied in our laws nothing will be done if the people turn their backs upon religion, make selfish enjoyment their highest good, and the comforts and pleasures of a merely material life their only heart-warming aspiration. In that fact we have an indication of the true functions of the Church and of religious teachers in the social and political life of our time and of times to come. As individuals, religious men should certainly be found always among the advocates of all laws and plans which tend to justice and mercy, and to the raising of the toilers everywhere to a higher standard of living. Further, at no time should the Church be found committed to a purely conservative policy, of retaining things as they are. The undeniable facts as to the condition of the poor are so utterly unjustifiable, that to leave things as they are is to fall into the treason of despair in regard to the future of our race, and into scarcely veiled disbelief of the essential truth of Christianity. No Church whose heart has not been corrupted by worldliness can think for a moment that the present state of things in all highly civilised communities is even tolerable. It cannot last, and it ought not to last; the Church that timidly supports it, lest worst things should come, is named and known thereby for recreant to Christ and to the highest hopes of His Gospel. But, on the other hand, it is only in very exceptional circumstances, and for short intervals, that the Churches and their ministers can ever be called upon to make the external, material condition of the people their first and chief care. They have a place of their own to fill, a function of their own to discharge; and upon their efficiency and diligence in these the stability and permanence of all that politicians and publicists can accomplish ultimately depends. They must keep alive and nourish the religious life, as that lifehas been shaped and constituted by our Lord Jesus Christ. Their province is to witness, in season and out of season, for a life of purity and love, for the Divine and ideal sides of things, for the necessity, for man's highest well-being, of a life hid with Christ in God. If they do not keep up this testimony, no others will; and if it be dropped out of sight, then the social agony and struggle, the patriotic and humanitarian strivings of all the reformers, will lack their final sanction. Men will inevitably come to think that man's life does consist in the abundance of the things that he possesses, the leisure, the amusement, the culture which by combining material resources he may attain to. But it is to deny and denounce that view that the Church exists in the world. It was to lift men out of it, to set them above it for ever, that Christ died. It is finally only by abandoning it that the highest social condition can be reached and made permanent for the multitudes of men. In no way therefore can the Church so dangerously betray the cause of the poor and the oppressed as by plunging into the heat of the social and political struggle. She has to witness to higher things than that involves, and her silence in the ideal region which would certainly follow her devotion to material interests, however unselfish, would be but ill compensated for by any imaginable success she might attain.
Among the nations of the modern world one of the most vital distinctions is the degree in which just judgment is estimated and provided for. Indeed, according to modern ideas, life is tolerable only where all men are equal before the law; where all are judged by statutes which are known, or at least may be known, by all; where corruption or animus in a judge is as rare as it is held to be dishonourable. But we cannot forget that in the majority of even the more advanced countries of the world these three conditions are not yet found, and that where they do exist they are only recent acquirements. In the latest born, and in many respects the most advanced of the great commonwealths, in the United States of America, the corruption of a number of the inferior courts is undeniable, and is tolerated with a most disappointing patience by the people. In England Judge Jeffries is no very remote memory, and Lord Bacon's acceptance of presents from litigants in his court has only been made more certain by recent investigations. An absolutely honest intention to give even-handed justice to all is, therefore, even in England, only a recent attainment, and in no country is the honest intention always successful in realising itself. But if this be so among the civilised nations of the West, we may say that in Oriental countries there has been little of systematic and continuous effort to give even-handed justice at all. Yet nowherehas the sinfulness and the destructiveness of corruption in judgment been more impassionedly and more frequently set forth by the highest authorities in religion and morals, than in the East. Tupper, our most recent authority, in writing ofOur Indian Protectorate, p. 289, describes the Indian attitude to law thus: "There was not that reverence for law which in Europe is in all probability very largely due to the influence of the Roman law, and to the teaching of the Roman Catholic and other Christian Churches. So far as there was a germ out of which the respect for law ought to have grown, it was to be found in dislike to actions plainly opposed to custom and tradition. There was a deeply rooted and widespread conviction that there could be no rule to which exceptions could not be made, if agreeable to the discretion of the chief or any of his delegates. The chief was set above the law; it did not limit his authority by any constitution. There was no legislation for the improvement of law. The administration of justice was extremely imperfect." The same writer describes the result of such a state of mind in his picture of Mahratta rule (p. 247). "There was," he says, "no prescribed form of trial. Men were seized on slight suspicions. Presumptions of guilt were freely made. Torture was employed to compel confession. Prisoners for theft were often whipped at intervals to make them discover where the stolen property was hidden.Ordinarily no law was referred to except in cases affecting religion." That there were both Hindu codes and Mohammedan codes in existence which claimed and were believed to have Divine authority made no difference in India. Nor does it make any in Persia to-day.[107]
Now, in coming to the consideration of the views of justice embodied in Old Testament law, and the quality ofthe judiciary in ancient Israel, we must take not Western but Eastern ideas as our standard. Judging from that point of view, it should create no prejudice in our minds if we find on the first glance that all men were not equal before the ancient law of Israel; that for a considerable period, if not during the whole political existence of Israel, there was no very extensive written law; and that arbitrary and corrupt judgment was only too common at all times. For none of these defects would indicate in ancient Israel the same evils as similar defects in nations of our time would indicate. They are rather defects in the process of being overcome, than defects arising from feeble or vitiated life. If there was a constant movement towards the highest state of things, that is all we can demand or expect to find.
Now there does seem to have been that. As has been well pointed out by Dr. Oort,[108]in the tribes which became Israel justice must have been administered by the heads of the various bodies which went to make these up. The household was ruled even in matters of life and death solely by the father; the family, in the wider sense, was judged by its own heads; the tribes by the elders of the tribes, and there probably was no appeal from one tribunal to another. Each tribunal was final in its own domain. It may be, also, that the judicial function was in all these bodies exercised in the lax and timid fashion common among Bedouin tribes to-day.[109]In all cases, too, it is probable that in the pre-Mosaic time the standard of judgment was customary law. Only with this very great modification can Oort's epigrammatic description of the situation—"There was no law, but there were givers of legal decisions"—be accepted. So far as can be ascertained, the customs according to which men were expected to live were perfectly well known, and within certain narrow limitsof variation were extraordinarily stable. How stable customary law may be made, even in the midst of a society governed in the main according to written law in its strictest sense, may be seen in the execration which any breach of the Ulster custom of tenant right met with, before that custom was embodied in any statutes. And in antiquity the stringency of custom can hardly be exaggerated. Under it, when thoroughly established, there was, in all the cases covered by it, only this one way of acting for all, both men and women, who were fit for society at all. Any alternative course was probably inconceivable in the tribal stage of the Israelites' existence.
But a change would doubtless be wrought whenever the appointment of a king took place. Then national law would appear, in embryo at least; and at first, until custom had grown up in this region also, it would largely be an expression of the will of the king, and of the royal officers instructed and trained by the king. But it would have free and unchallenged course only when it claimed authority in matters lying outside of the family and tribal jurisdictions. Wherever it attempted to interfere with tribal or family rights, danger to the kingship of the most acute kind would be sure to arise. In all probability, it was disregard of this axiomatic truth which made Solomon's reign so burdensome to the people and tore the kingdom asunder under Rehoboam. Ahab too fell a victim to his disregard of it. Lastly, the introduction of elaborate written codes of law would, if it came as the crown of such a development, depose custom from its supremacy, though it would not abolish it; and would substitute for it as the main element in all judicial matters the written prescription, which is the necessary presupposition of a fully organised judiciary of the modern type, with a regulated and definite power of appeal.
But in the case of ancient Israel there is a distinguishingelement which has to be fitted into this ordinary scheme of progression, and that is the Divine revelation to Moses. Taken up at the tribal stage by the Mosaic revelation, the Israelite tribes were touched and welded into coherence, if not quite as a nation, at least as the people of Yahweh, so that during all the distracting days of the Judges they kept up in essentials their social and religious unity.[110]And with the religious union there must have come administrative uniformity to some considerable extent. The jurisdiction of the heads of households, of heads of families, and of the tribal elders would be as little interfered with as possible; but, as we have seen, all customs and rights had to be reviewed from the point of view of the new religion, and appeal to Moses as the prophet of it must have often been unavoidable. Just as his first followers were continually coming to Mohammed, to ask whether this or that ancient custom could be followed by professors of Islam, so there must have been constant appeals to Moses. So long as he lived, therefore, he, and after him Joshua and Moses' fellow-tribesmen the sons of Levi, as being specially zealous for the religion of Yahweh, must have been constantly called in to assist the customary judges; and so the habit of appeal must have grown in Israel long before there was any king. Thus also a common standard of judgment would be established. That standard must necessarily have been the law of Yahweh,i.e.the new Yahwistic principles and all that mightprima faciebe deduced from them, together with so much of custom and tradition as had been accepted as compatible with these principles. We have stated the reasons for holding that the Decalogue was Mosaic, and the Book of the Covenant may be taken also to represent what the current law in Mosaic or sub-Mosaic time was held to be. As Oort well says (loc. cit.), when we know that the Hittites aboutthe middle of the fourteenth centuryB.C.concluded a treaty with Rameses II. of Egypt the terms of which were written upon a silver plate, "why may there not also have been written statements regarding the mutual rights and duties of the people of a town, engraved upon stone or metal, and set forth openly for inspection?" What he confines to mere town business and refers to the time of the Judges, we may without risk extend to a general fundamental law like the Decalogue, or even to the Book of the Covenant, and date it in the time of Moses. Writing was so common an accomplishment in Canaan before the Exodus, that such a supposition is not in the least improbable. These written laws formed the crown of the law of Yahweh, and by them all the rest was raised to a higher level and transformed.
As new men, new times, and new difficulties arose, the priest became the special organ of Divine direction. It may be that the priestly Torah was largely the result of the sacred lot; but the questions that were put, and the manner in which they were put, would be decided ultimately by the conception the priest had of the truth about God. The teaching of the Decalogue would therefore be the dominant and formative power in all that was spoken by the priest and for Yahweh. In the disorganised state into which Israel fell during the time of the Judges, when, as Deuteronomy takes for granted, and as 1 Kings iii. 2 and 3 asserts, the legitimate worship of Yahweh was carried on at many centres, the substantial sameness of the tradition as to the history of Israel, in all the varied forms in which we encounter it, is proof sufficient that at each of the great sanctuaries (which were certainly in the hands of Levitical priests) the treasure of ancient knowledge, both in law and history, was carefully and accurately preserved.[111]New decisions would begiven, but they came through men penetrated with the high thoughts of God, and of His people's destiny, which Moses had so fruitfully set forth. This was the element in the life of the people which all the higher minds strove to perpetuate, and, being spiritual, it spiritualised and raised all accessory things. Consequently there was, long before the kingship, what was equivalent to a national feeling of the highest kind, and the conception of justice and its administration corresponded to that.
In the Book of the Covenant, which in this matter represents so early a period that there is no mention of "judges," only of Pelilim,[112]i.e.arbitrators (Exod. xxi. 22), so that the tribal and family heads can alone have exercised judicial functions, we find the most solemn warnings against any legal perversion of right to gain popularity, against yielding to the vulgar temptation to oppress the poor, or to the subtler and, for generous minds, more insidious temptation, to give an unjust judgment out of pity for the poor. Israel was, moreover, to keep far from bribery, "which blindeth them that have sight, and perverteth righteous causes." In no way was the law to be used for criminal or oppressive purposes. From the very first, therefore, in Israel the higher principles of faith and life set themselves to combatà outrancethe tendency to unjust judgment, which seems now, at least, quite ineradicable in the East, save among the Bedouin.[113]
A still higher note is struck in the repetition of the law in the Book of Deuteronomy. In chap. i., originally part of a historic introduction to the book proper, we read: "Hear the causes between your brethren, and judge righteously between a man and his brother, and thestranger that is with him. Ye shall not respect persons in judgment; ye shall hear the small and the great alike; ye shall not be afraid of the face of man; for the judgment (i.e.the whole judicial process and function) is God's; and the cause that is too hard for you ye shall bring unto me (Moses), and I will hear it." Yes, the judgment is God's. Just as the whole of moral duty towards man was raised by the Decalogue to a new and more intimate relation with God, so here justice, the fundamental necessity of a sound and stable political state, is lifted out of the conflict of mean and selfish motives, in which it must eventually go down, and is set on high as a matter in which the righteous God is supremely concerned. In this, as in all things, Israel was called to a lonely eminence of ideal perfection by the character of the God whom they were bound to serve. Therefore it strikes us with no surprise that justice is insisted upon almost with passion in Deut. xvii. 20: "Justice, justice shalt thou pursue after, that thou mayest live and possess the land which Yahweh thy God giveth thee"; or that it is made one of the conditions of Israel's permanence as a nation. In chap. xxiv. 17 we read, "Thou shalt not wrest the judgment of the stranger, nor of the fatherless; nor take the widow's raiment to pledge"; in xxv. 1 and 2, "If there be a plea between men, ... then they (i.e.the judges) shall justify the righteous and condemn the wicked." For any other course of conduct would bring guilt upon the nation in the sight of Yahweh; and how jealously that was guarded against is seen in the sacrifice and ritual imposed for the purification of the people from the guilt of a murder the perpetrator of which was unknown (Deut. xxi. 1-9). Unatoned for and disregarded, such a crime brought disturbance into those relations between Israel and their God upon which their very existence as a nation depended; and the disregard of justice, where wrongs were committedby known persons and were left unpunished, was of course more deadly. So the author of Deuteronomy looked upon it; and the prophets, from the first of them to the last, brand unjust judgment, the perverting the course of legal justice, as the most alarming sign of national decay. The righteous God, with whom there was no respect of persons, could not permanently favour a people whose judges and rulers disregarded righteousness; and when destruction actually came upon this people, it was proclaimed to be God's doing, "because there was no truth nor justice nor knowledge of God in the land."
Nowhere in the world, therefore, has the demand for justice been made more central than here, and nowhere has injustice been more passionately fought against. Nor have the sanctions binding to a pursuit of justice been at any period more nobly or more vividly conceived. In this main point, therefore, Israel's law stands irreproachable—marvellously so, considering its great antiquity. But we have still to inquire whether any really adequate provision was made for the general and inexpensive administration of justice. To take the latter first, law was in old Israel probablyas cheapas it would be in the primitive East to-day, if bribery were to be stopped. To advise as to the sacred law, to plead for justice according to it, did not then, and does not now in similar circumstances, belong to any special professional class who live by it. The priest could be appealed to freely by all; and the heads of fathers' houses, as well as the tribal heads, were, by the very fact that they were such, bound to give judgment among their people, and to appear for and take responsibility for them when they had a cause with persons beyond the limits of the particular families and tribes. Justice, consequently, was in ordinary circumstances perfectly free to all.
And from a very early time earnest efforts were madeto make it equallyaccessible. At first, when the people were in one army or train, before they came to Sinai, an overwhelming burden was laid upon Moses. As the prophet of the new dispensation all difficulties were brought to him. But at Jethro's suggestion, as JE tells us in Exod. xviii. 13 ff., and as Deuteronomy repeats in chap. i. 16, he chose men of each tribe, or took the heads of each tribe, and set them as captains of thousands and hundreds and fifties and tens. Not improbably this was primarily a military organisation, but to these captains was committed also jurisdiction over those under them. In all ordinary cases they judged them and their families in the spirit of Yahwism, as well as commanded them; and in this way, as has already been pointed out, the customary law was revised in accordance with Yahwistic principles. Justice too was brought to every man's door. The only question that suggests itself is, whether these captain-judges were the ordinary family and tribal heads, organised for this purpose by Moses. On the whole this would seem to have been so, and it may well be that Jethro's suggestion had in view the danger of ignoring them, as well as the burden which Moses' sole judgeship laid upon him. But with the advance to the conquest of Canaan a new situation emerged, and the probability is that more and more, as the tribes fell into entire or semi-isolation, the tribal organisation in its natural shape would come to the front again. Deuteronomy, however, tells us little if anything of this. In the main passage regarding this matter (xvii. 8-13), where provision is made for an appeal to a central court, the legislation is entirely for a period much later than Moses. Like the law regarding sacrifice at one altar, the judicial provisions of Deuteronomy seem all to be bound up with the place which Yahweh shall choose, viz. the Solomonic Temple in Jerusalem. We may consequently concludethat the judicial arrangements to which Deuteronomy alludes existed only after the Israelite kingship had been for some time established at Jerusalem. We have no distinct evidence for the existence of a central high court in David's days; and from the story of Absalom's rebellion we should gather that the old, simple Oriental method still prevailed, according to which the king, like the heads of tribes, families, etc., judged every one who came to him, personally, at the gate of the royal city. But Samuel is said in 1 Sam. vii. 16 to have annually gone on circuit to Bethel, Gilgal, and Mizpah. According to the school of Wellhausen, nearly the whole of this chapter is the work of a Deuteronomic writer about the year 600. In that case, of course, it would be difficult to prove that the arrangement attributed to Samuel was not a mere echo of what was done in Josiah's day; though, if the Deuteronomic prescriptions were carried out then, there would be no need for such a system. On the other hand, if Budde and Cornill be right in tracing the chapter back to JE, this habit of going on circuit must have been an ancient one, possibly dating from Samuel's time. That this latter view is the correct one is in a degree confirmed by the statement in viii. 2 that Samuel's sons were installed by him as judges in Israel, at Beersheba. This belongs to E, and it would seem to indicate the beginnings of such a system as Deuteronomy presupposes.
But it is only in the days of Jehoshaphat (873-849 B.C.) that an arrangement like that in Deuteronomy is mentioned. From 2 Chron. xix. 5 ff. we learn that "he set judges in the land throughout all the fenced cities of Judah, city by city. Moreover in Jerusalem did Jehoshaphat set of the Levites and of the priests, and of the heads of the fathers' houses, for the judgment of Yahweh and for controversies." Further, it is stated that Amariah the chief priest was set over the judges inJerusalem in all Yahweh's matters,i.e.in all religious questions, and Zebadiah the son of Ishmael the prince of the house of Judah in all the king's matters,i.e.in all secular affairs. Of course few advanced critics will admit that the Books of Chronicles are reliable in such matters. But that judgment is altogether too sweeping, and here we would seem to have a well-authenticated record of what Jehoshaphat actually did.
For it will be observed, that when we take up the various notices in regard to the administration of justice, we have a well-defined progress from Moses to Jehoshaphat. Moses was chief judge and committed ordinary cases to the tribal and family heads who were chosen as military leaders, each judging his own detachment. After passing the Jordan, the whole matter would seem to have fallen back into the hands of the tribal heads, with the occasional help of the heroes who delivered and judged Israel. At the end of this period Samuel, as head of the State, went on circuit, and appointed his sons judges in Beersheba, thus initiating a new system, which, had it been successful, might have superseded the tribal and family heads altogether. But it was a failure, and was not repeated. With the rise of the kingship the courts received further organisation. If the Chronicler can be trusted, Levites to the number of six thousand were appointed to be judges and Shoterim. The number seems excessive; but the appointment of Levites to act as assessors with the tribal and other heads would be a natural expedient for a king like David to have recourse to, if he desired to secure uniformity of judgment, and to bring the courts under his personal influence. The next step would naturally be that which is attributed to Jehoshaphat, and it is precisely that which Deuteronomy points to as being already at work in his time. We have, consequently, more than the late authority of the Chronicler forJehoshaphat's high court. The probabilities of the case point so strongly to the rise of some such judicial system about that period, that it would require some positive proof, not mere negative suspicion, to lead us to reject the narrative. In any case this must have been the system in Josiah's day, and afterwards. For when Jeremiah was arraigned for prophesying destruction to the Temple and to Jerusalem, the process against him was conducted on similar lines to those laid down in Deuteronomy. The princes judged, the priests (curiously enough along with the false prophets) made the charge,i.e.stated that the prophet's conduct was worthy of death, and the princes acquitted. During the Exile it is probable that the "elders" of the people were permitted to judge them in all ordinary cases, but we have no certain proof that this was so. After the return from Babylon, however, the local courts were re-established, probably in the very form in which they appear in the New Testament (Matt. v. 22, x. 17; Mark xiii. 9; Luke xii. 14-58).
Throughout the whole history of Israel, therefore, courts of justice were easily accessible to every man, whether he were rich or poor. No doubt the free, open-air, Eastern manner of administering justice was favourable to that; but from the days of Moses onward we have fairly conclusive proof that the leaders of the people made it their continual care that wherever a wrong was suffered there should be some court to which an appeal for redress could be made.
The justice aimed at in Israel was, therefore,impartialandaccessible. We have still to inquire whether it wasmercifulor cruel in its infliction of punishment. Dr. Oort says it was a hard law in this respect, but one is at a loss to see how that view can be sustained. There is no mention of torture in connection with legal proceedings, either in the history or in the legislation. Nor is there any instancementioned in which an accused person was imprisoned until he confessed. Indeed imprisonment would not appear to have been a legal punishment in Israel, nor in any antique state. The idea of providing maintenance for those who had offended against the law was one which could never have occurred to any one in antiquity. Prisons are, of course, frequently mentioned in Scripture; but they were used, up to the time of Ezra, only for the safe-keeping of persons charged with crime till they could be brought before the judges. Sometimes, as in the case of the prophets, men were imprisoned to prevent them from stirring up the people; but this procedure was nowhere sanctioned by law. Further, the crimes for which the punishment prescribed in the ancient law was death were few. Idolatry, adultery, unnatural lust, sorcery, and murder or manslaughter, together with striking or cursing parents and kidnapping—these were all. Considering that idolatry and sorcery were high treason in its worst forms, so far as this people was concerned, and that impurity threatened the family in a much more direct and immediate fashion then than it does now, while the people were naturally inclined to it, one must wonder that the list of capital crimes is so short. Contrast this with Blackstone's statement in regard to England (quotedEncy. Brit., iv., p. 589): "Among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared by Act of Parliament to be felonies without benefit of clergy, or, in other words, to be worthy of instant death." It is only in comparatively recent years that the punishment of death has been practically restricted to murder in England. Yet that is almost the case in the ancient Jewish law; for the exceptions are such as would reappear in England if it were more sparsely populated and manners were rougher. In Australia, for example, highway robbery under arms and violence to women arecapital crimes, just because the country is sparsely inhabited and the households unprotected. Nor were the modes of death inflicted cruel. Only three—viz. impalement, and burning, and stoning—appear to be so. But it may be believed that in the cases contemplated by the law death in some less painful manner had preceded the two former, as is certainly the case in Josh. vii. 15 and 25, and in Deut. xxi. 22. As for the latter, it must have been horrible to look upon, but in all probability the criminal's agony was rarely a prolonged one. The other method of execution, by the sword namely, was humane enough. Dr. Oort tells us that mutilations were common; but his proof is only this, that in the treaty between the Hittite king and Rameses II. we read, concerning inhabitants of Egypt who have fled to the land of the Hittites and have been returned, "His mother shall not be put to death; he shall not be punished in his eyes, nor on his mouth, nor on the soles of his feet." The same provision is made for Hittite fugitives. From this evidence of the custom of surrounding peoples, and from the fact that thejus talionisis announced in the Scriptures by the familiar formula, "Eye for eye, tooth for tooth, hand for hand, foot for foot," Dr. Oort draws this conclusion. But he appears to forget that thejus talioniswas common to almost all the peoples of the ancient world, and is referred to in the Pentateuch, not as a new principle, but as a custom coming down from immemorial time. Consequently, though there must once have been a time in which it was carried out in its literal form, that time probably was past when the laws referring to it were written. In Rome, and probably in other lands where this custom existed, it early gave place to the custom of giving and receiving money payments. Most probably this was the case in Israel, at least from the time of the Exodus. For the new religion introduced by Moses wasmerciful. But these references to the principle of retaliation tell us nothing as to the frequency or otherwise of mutilation as a punishment. No instance of mutilation being inflicted either as a retaliation or as a punishment occurs in the Old Testament, and the probability is that cases were never numerous. Apart from retaliation they are never mentioned; and we may, I think, set it down as one of the distinctive merits of the Israelite law that it never was betrayed into sanctioning the cutting off of hands or feet or ears or noses as general punishment for crime. But so far as the principle of thelex talioniswas retained, its effect was wholesome. It was a continual reminder that all free Israelites were equals in the sight of Yahweh. And not only so, it enforced as well as asserted equality. Any poor man mutilated by a rich man could demand the infliction of the same wound upon his oppressor. He could reject his excuses, and refuse his money, and bring home to him the truth that they had equal rights and duties.
In this way this seemingly harsh law helped to lay the foundation for our modern conception of humanity, which regards all men as brethren. For the teaching of our Lord, which fulfilled all that the polity and religion of ancient Israel had foreshadowed of good, broke down the walls of partition between Jew and Gentile, and made all men brethren by revealing to them a common Father. It surely is strange and sad that those who specially make liberty, equality, and fraternity their watchwords, have received so false an impression of the religion of both the Old and New Testaments, that they pride themselves on rejecting both. When all is said, the levelling of barriers which the crushing weight of Roman power brought about, and the common methods and elements of thought which the Greek conquests had spread all over the civilised world, would never have made the brotherhood of man the universally accepted doctrine it is. Thetruths which made it credible came from the revelation given by God to His chosen people, and its final and conclusive impulse was given to it by the lips of Christ.
In face of that cardinal fact it is vain to point out as one of the defects of this law that all men were not equal before it. Women were not equal with men, nor were foreigners nor slaves equal with freeborn Israelites; but the seed of all that later times were to bring was already there. The principles which at the long end of the day have abolished slavery, raised women to the equal position they now occupy, and made peace with foreigners increasingly the desire of all nations, had their first hold upon men given them here. In all these directions the Mosaic law was epoch-making. In the fifth commandment, as well as in the legislation regarding the punishment of a rebellious son, the mother is put upon the same level as the father. However subordinate woman's position in the larger public life might be, within the home she was to be respected. There, in her true domain, she was man's equal, and was acknowledged to have an equal claim to reverence from her children.
In precisely the same way the "stranger" was freed from disability and protected. In the earliest days, when the Israelite community was still being formed, whole groups of strangers were received into it and obtained full rights, as for example the Kenites and Kenizzites. But though this was a promise of what Israel was ultimately to be to the world, the necessities of the situation, the need to keep intact the treasure of higher religion which was committed to this people, compelled the adoption of a more separatist policy. Yet "in no other nation of antiquity were strangers received and treated with such liberality and humanity as in Israel." They were freely afforded the protection of the law; they were, in short, received as"a kind of half-citizens, with definite rights and duties."[114]Further, though the ger was not bound to all the religious practices and rites of the Israelite, yet he was permitted, and in some cases commanded, to take part in their religious worship. If he consented to circumcise all his house he might even share in the Passover feast. All oppression of such an one was also rigorously forbidden, and to a large extent the stranger shared in the benefits conferred by the provision for the poor of the land which the law made compulsory.
Nor was the case otherwise with slaves. Equality there was not, and could not be; but in the provisions for the emancipation of the Israelite slave and the introduction of penalties for undue harshness, it began to be recognised that the slave stood, in some degree at least, on the same level as his master—he too was a man.
Taking it as a whole, therefore, the ancient world will be searched in vain for any legislation equal to this in the "promise and the potency" of its fundamental ideas as to justice. Here, as nowhere else, we can see the radical principles which should dominate in the administration of justice laying hold upon mankind, and that there was a living will and power behind these principles is shown in the steady movement toward something higher which characterised Israelite law. In the pursuit of impartiality, accessibility, and humanity, the teachers of Israel were untiring, and the sanctions by which they surrounded and guarded all that tended to make the administration of justice effective in the high sense were unusually solemn and powerful. The result has been most remarkable. All the ages of civilised men since have been the heirs of Israel in this matter. Romaninfluence and the influence of the Christian Church have no doubt been powerful, and the manifold exigencies of life have drawn out and made explicit much which was only implicit in the ancient days. But the higher qualities of our modern administration of justice can be traced back step by step to Biblical principles, and the course of development laid bare. When that is done, it is seen that the almost ideal purity and impartiality of the best modern tribunals is the completion of what the Israelite law and methods began. In this one instance at least the great Mosaic principles have come to fruition; and from the security and peace, the contentment and the confidence, with which impartial justice has filled the minds of men, we can estimate how potent to cure the ills of our social and moral state the realisation of the other great Mosaic ideals would be. It should be a source of encouragement to all who look for a time when "the kingdoms of this world shall become the kingdoms of our Lord and of His Christ," that something like the ideal of justice has so far been realised. It has no doubt been a weary time in coming, and it has as yet but a narrow and perhaps precarious footing in the world. But it is here, with its healing and beneficent activity; and in that fact we may well see a pledge that all the rest of the Divinely given ideals for the Kingdom of God will one day be realised also. Such a consummation, however remote it may seem to our human impatience, however devious and winding the paths by which alone it can draw near, will come most surely, and in our approach to the ideal in our judicial system we may well see the firstfruits of a richer and more plentiful harvest.
In dealing with the ten commandments it has been already shown that, though these great statements of religious and moral truth were to some extent inadequate as expressions of the highest life, they yet contained the living germs of all that has followed. But we cannot suppose that the reality of Israelite life from the first corresponded with them. They contained much that only the experience and teaching of ages could fully bring to light; therefore we cannot expect that the actual laws in regard to the relations of the sexes and the virtue of chastity should stand upon the same high level as the Decalogue. The former represent the reality, this the ultimate ideal of Israelite law on these subjects. But neither is unimportant in forming an estimate of the value of the revelation given to Israel, and of the moral condition of early Israel itself, nor can either be justly viewed altogether alone. The actual law at any moment in the history of Israel must be regarded as inspired and upborne by the ideal set forth in the ten commandments. But it must, at the same time, be a very incomplete realisation of these, and its various stages will be best regarded as instalments of advance towards that comparative perfection.
In regard to the relations of the sexes and the virtue of purity this must be peculiarly the case. For though chastity has been safeguarded by almost all nations upto a certain low point, it has never been really cherished by any naturalistic system. Nor has it ever been favoured by mere humanism.[115]Consequently there is no point of morals in regard to which man has more conspicuously failed to work out the merely animal impulse from his nature than in this. And yet, for all the higher ends of life, as well as for the prosperity and vigour of mankind, purity in the sexual relations is entirely vital. One great cause of the decay of nations, nay, even of civilisations, has been the abandonment of this virtue. This was the main cause of the destruction of the Canaanites. It may even be said to have been the cause of the wreck of the whole ancient world. We should consequently measure what the Mosaic influence did for purity of life, not by comparing early Israelite laws with what has been accomplished by Christianity, but with the condition of the Semitic peoples surrounding Israel, in and after the Mosaic times.
What that was we know. Their religions, far from discouraging sexual immorality, made it a part of their holiest rites. Both men and women gave themselves up to natural and unnatural lusts, in honour of their gods. To the north, and south, and east, and west of Israel these practices prevailed, and as a natural result the moral fabric of these nations' life fell into utter ruin. In private life adultery, and the still more degrading sin of Sodom were common. The man had a right to indiscriminate divorce and remarriage, and marriage connections now reckoned incestuous, such as those between brother and sister, were entirely approved. In all these points Israelas a nation was without reproach. The higher teaching this people had received in respect to the character of God, and it may be some reminiscence of Egyptian custom, which was in some respects purer than that of the Semitic peoples, raised them to a higher level. Yet in the main the early Israelite view of women was fundamentally the uncivilised one.
But at all periods of Israelite history, even the earliest, women had asserted their personality. In the eye of the law they might be the chattels of their male relatives, but as a fact they were dealt with as persons, with many personal rights. They had no independent position in the community, it is true. They could take no part in a festival so important as the Passover, nor were they free to make vows without the consent of their husbands. In other ways also social restraints were laid upon them. Nevertheless their position in early Israel was much higher than it is in the East to-day, and their liberty was in no wise unreasonably abridged. In David's day women could appear in public to converse with men without scandal.[116]They also took part in religious festivals and processions, giving life to them by beating their timbrels, by singing, and by dancing.[117]They could be present also at all ordinary sacrifices and at sacrificial feasts; and, as we see in the case of Deborah and others, they could occupy a high, almost a supreme, position as prophetesses. In the main, too, the relations between husband and wife were loving and respectful, and in Israel's best days, when the people still remained landed yeomanry, the wife, by her industry within the house, supplemented and completed her husband's labour in the fields. The Israelite woman was consequently a very important person in the community, whatever her status in law might be; and ifshe had not the full rights which are now granted to her sex in Western and Christian lands, her position was for the times a noble and independent one. That all this was so was largely due to the improvements which Mosaism wrought on the basis of that ancient Semitic custom which we sketched at the beginning of this chapter, and with which it seems natural to suppose the Israelite tribes had also begun.
Bearing these preliminary considerations in mind, we now go on to consider the actual legislation in regard to the relations of the sexes. But here we must once more recall the fact that, in regard to all matters vitally affecting the community, there had always been a custom, and even before written law appears that custom had been adopted and modified in Yahwism by Moses himself. That this was actually the case here is rendered highly probable by the history of legislation in this matter. In the Book of the Covenant there is no mention of sexual sin, save in one passage (Exod. xxii. 16), where the penalty for seduction of a virgin who is not betrothed is that the seducer shall offer a "mohar" for her, and marry her without possibility of divorce, if her father consent. If he will not, then the "mohar" is forfeited to the father nevertheless, as compensation for the degradation of his daughter. But it is obvious that there must have been laws or customs regulating marriage other than this, for without them there could have been no such crime as is here punished. Obviously, also, there must have been laws or customs of divorce. But of what these laws of marriage and divorce were Exodus gives us no hint. Deuteronomy, the next code, which on the critical hypothesis arose at a much later time as a revision of the Book of the Covenant, contains much more,i.e.it draws out of the obscurity of unwritten custom a more extensive series of provisions in regard to purity. The Law of Holiness then adds largely toDeuteronomy, and with it the main points of the law of purity have attained to written expression. But the influence of the higher standard set in the Decalogue also makes itself felt,—not in the law so much as in the historic books and the prophets—and our task now is to trace out first the legal development, then the prophetical, and to show how the whole movement culminated and was crowned in the teaching of Christ.
Beginning then with Deuteronomy, we find that the chastity of women was surrounded by ample safeguards. Religious prostitution was absolutely prohibited (Deut. xxiii. 18). Further, if any violence was done to a woman who had been betrothed, the punishment of the wrong was death; if done to a woman who was not betrothed, the wrong was atoned for by payment of fifty shekels of silver to her father, and by offering marriage without possibility of divorce. If marriage was refused, then the fifty shekels was retained by the father in consideration of the wrong done him. When the woman was a sharer in the guilt the punishment in all cases was death; while pre-nuptial unchastity, when discovered after marriage, was punished, as adultery also was, with the same severity.[118]In women who were free, therefore, purity was demanded in Israel as strenuously as it ever has been anywhere, though in man the only limit to sexual indulgence was the demand, that in seeking it he should not infringe upon the father's property in his daughter, or the husband's in his wife or his betrothed bride.
Admittedly the original underlying motive for this moral severity was a low one, the mere proprietary rights of the father or husband. But it would be a mistake to suppose that purely ethical and religious motives had no place in establishing the customs or enactments which we findin Deuteronomy. With the lapse of time higher motives entwined themselves with the coarse strand of personal proprietary interest, which had originally, though perhaps never alone, been the line of limitation. Gradually there grew up a standard of higher purity; and when Deuteronomy was written, though the original line was still clearly visible, it was justified by appeals to a moral sense which reached far beyond the original motives of the customary law. The continually recurring burden of Deuteronomy in dealing with these matters is that to work "folly in Israel" is a crime for which only the severest punishment can atone. To "extinguish the evil from Israel," and to put away such things as were "abominations to Yahweh their God," are the great reasons on which the writer of Deuteronomy founds the claim for obedience in these cases. Obviously, therefore, by his time, under the teaching of the religion of Yahweh, Israel had risen to a moral height which took account of graver interests than the rights of property in legislating for female purity. The cases included in the law had been determined by considerations of that kind; but the sanctions by which the commands were buttressed had entirely changed their character. The holiness of God and the dignity of man, the consideration of what alone was worthy of a "son of Israel," have taken the place of the coarser sanctions. In this way a possibility of unlimited moral progress was secured, since the cause of purity was indissolubly bound to the general and irresistible advance of religious and moral enlightenment in the chosen people.
Moreover the personality of the woman was acknowledged in the entire acquittal of the betrothed woman who had been exposed to outrage in the country, where her cries could bring no help. In the earliest times most probably the punishment of death would have been inflictedequally in that case, since the husband's property had been deteriorated to such a degree as to make it unworthy of him. But in the Deuteronomic provision quite other things are drawn into the estimate. The moral guilt of the person concerned is now the decisive consideration. The woman has ceased to be a mere chattel, and the full claims of her personality are in the way to be recognised. These were great advances, and for these it is vain to seek for other causes than the persistent upward pressure of the Mosaic religion. The moral superiority of Israel at the time of the conquest over the much more cultured Canaanites, as also over the nomadic tribes to which they were more nearly related, is due, as Stade says, ultimately to their religion; and no reader of the Old Testament, in our time at least, can fail to see that their moral progress in the land they conquered depended entirely upon the same cause. At the Deuteronomic epoch purity had already been placed upon a worthy basis, as a moral achievement of the first importance, and impurity had taken its proper place as a degrading sin. But much still remained to be done before these principles could be extended into all domains of life equally.
How far they had penetrated in early times may perhaps best be seen in the Deuteronomic references to divorce. Before Deuteronomy there is no law of divorce, nor indeed is there any after it. We may perhaps even say that there is in it not so much the statement of a law of divorce, as a reference to custom which the writer wishes to correct or reinforce in one particular respect only. Notwithstanding the Jewish view, therefore, which finds in Deut. xxiv. 1-4 a divorce law, we must adduce the passage as a new and striking proof of what we have all along asserted, that neither Deuteronomy nor any other of the legal codes can be taken as complete statements of what was legally permitted or forbidden in Israel.Behind all of them there is a vast mass of unwritten customary law, and divorce was doubtless always determined by it. That this was the case will be seen at once if the passage we are now concerned with be rightly translated. It runs thus: "When a man taketh a wife and marrieth her, and it shall be (if she find no favour in his eyes, because he hath found in her some unseemly thing) that he writeth her a bill of divorcement, and giveth it into her hand, and sendeth her out of his house, and she go forth out of his house and goeth and becometh the wife of another man, and if the latter husband also hate her, and write her a bill of divorcement, and give it in her hand and send her out of his house, or if the latter husband die who took her to him to wife, then her former husband who sent her away may not take her again to be his wife after that she has permitted herself to be defiled." All the passage provides for, therefore, is that a divorced woman shall not be remarried to the divorcing man after she has been married again, even though she be separated from her second husband by divorce or death. There is consequently no law of divorce here stated. There is merely a reference to a general law or custom by which divorce was permitted for "any unseemly thing," and according to which a chief wife at any rate could be divorced only by a "bill of divorcement," and not by mere word of mouth, as is common in many Eastern lands to-day. Mosaic influence may have procured this last slight increase in rigour, and Deuteronomy certainly adds three other restrictions, viz. that after remarriage a woman cannot be again married to her first husband, and that pre-nuptial wrong done to a woman by her husband, or a false accusation by him after marriage, takes away his right of divorce altogether. But the woman has no right of divorce at all, so firmly fixed throughout all Old Testament time was the belief in theinferiority of women. On the whole, therefore, divorce in Israel remained, after the law had dealt with it, much on the level to which the tribal customs had brought it. So far as the legislation dealt with it, it tended to restriction; but when all is said it remains true that the Israelitelawof divorce was in the main much what it would have been had there been no revelation. But thespiritof the religion of Yahweh was against laxity in this matter, and this more rigorous feeling finds expression in the evident distaste for the remarriage of a divorced woman which is expressed in Deut. xxiv. 4. Remarriage is not forbidden; but the woman who remarries is spoken of as one who has "let herself be defiled." No such expression could have been used, had not remarriage after divorce been looked upon as something which detracted from perfect feminine purity. The legislator evidently regarded it as the higher way for a divorced woman to remain unmarried so long at least as the divorcing husband lived. If she remained so, the possibility of reunion was always kept open, and the law evidently looked upon the ultimate annulment of the divorce as the course which was most consonant with the ideal of marriage.
It is thus clearly seen how our Lord's statement (Matt. xix. 8)—"Moses because of the hardness of your hearts suffered you to put away your wives, but from the beginning it hath not been so"—is true.
And when we leave the law and come to history and prophecy, we find this view to have been a prevalent one from early times. In one of the earliest connected historical narratives, that of J (Gen. ii. 24), the union of husband and wife is said to be so peculiarly intimate that it makes them one body, so that separation is equivalent to mutilation. And the prophets remain true to this conception of marriage, as the one which fitted best into their deeper and loftier views of morality. From Hoseaonwards[119]they represent the indissoluble bond between Yahweh and His people as a marriage relation, founded on free choice and unchangeable love. The possibility of divorce is no doubt often admitted, and the conduct of Israel is represented as justifying that course. But the prophetic message always is that the love of God will never permit Him to put away His people; and the people are often addressed as faithless and faint-hearted, because they yield to the temptation of believing that He has cast them off (Isa. l. 1). Evidently, therefore, the prophetic ideal of marriage was that it should be indissoluble, that it should be founded upon free mutual love, and that such a love should make it impossible for either husband or wife to give the other up, however desperate the errors of the guilty one might have been.
Perhaps the finest expression of this view occurs in Isa. liv., in the exhortation addressed to exiled Israel and beginning "Sing, O barren, thou that didst not bear." There the ideal Israel is urged to lay aside all her fears with this assurance: "For thy Maker is thine husband; Yahweh of Hosts is His name: and thy Redeemer, the Holy One of Israel, the God of the whole earth shall He be called. For Yahweh hath called thee as a woman forsaken and grieved in spirit; how can a wife of youth be rejected? saith thy God." The full meaning of this last touching question has been well brought out by Prof. Cheyne (Isaiah, ii., p. 55): "Even many an earthly husband (how much more then Yahweh!) cannot bear to see the misery of his divorced wife, and therefore at length recalls her; and when his wife is one who has been wooed and won in youth, how impossible is it for her to be absolutely dismissed." The rising tide of prophetic feeling on this subject culminates in the pathetic scene depicted by Malachi, who in chap. ii. 12 ff. reproves hispeople for their cruel and frivolous use of divorce. Drawn away by love of idolatrous women, they had divorced their Hebrew wives; and these in their misery crowded the Temple, covering the altar of Yahweh with "tears and weeping and sobbing," till He could endure it no more. He had been witness of the covenant made between each of these men and the wife of his youth; yet they had broken this Divinely sanctioned bond. He therefore warns them to take heed, "for Yahweh the God of Israel saith, I hate putting away, and him who covers his garment with violence." The Rabbinic interpreters, not being minded to give up the privilege of divorce, have wrested these words into "for Yahweh the God of Israel saith, If he hate her put her away." But, so wrested, the words bring down the whole context in one ruin. They are intelligible only if they denounce divorce, and in this sense they must undoubtedly be taken.
There remains for consideration, however, a marriage which the Deuteronomist permits, which seems to run counter to all the finer feelings and instincts of his later time. It is dealt with in chap. xxv. 5-10, and is notable because it is a clear breach of the definite rule that a man should not marry his deceased brother's wife. But it will be obvious at once that the permission of this marriage stands upon quite a different footing from the prohibition. It is permitted only in a special case for definite ends; and while the sanction of the prohibition is the infliction of childlessness (Lev. xx. 21), the man who refuses to enter upon marriage with his deceased brother's wife is punished only by being put to shame by her before the elders of his city. We have not here, therefore, a law in the strict sense. It is only a recognition of a very ancient custom which is not yet abolished, though evidently public feeling was beginning to make light of the obligation. Its place in the twenty-fifth chapter,away from the marriage laws (which are given in xxi. 10 ff., xxii. 13 ff., and xxiv. 1-4), and among duties of kindness, seems to hint this, and we may consequently take the law as a concession. That the custom was ancient in the time of Deuteronomy may be gathered from the fact that in Hebrew there is a special technical term,yibbēm, for entering on such a marriage. The probability is, indeed, that levirate marriage was a pre-Mosaic custom connected with ancestor-worship. It certainly is practised by many other races,e.g.the Hindus and Persians, whose religions can be traced to that source. Under that system, it was necessary that the male line of descent should be kept up in order that the ancestral sacrifices might be continued, and to bear the expense of this the property of the brother dying childless was jealously preserved. In India, at present, both purposes are served by adoption, either by the childless man or by the widow. In earlier times, when fatherhood was to a large extent a merely juridical relationship,[120]when, that is to say, it was a common thing for a man to accept as his son any child born of women under his control, whether he were the father or not, the same end was also attained by this marriage.[121]Originating in this way, the practice was carried over into the Israelite social life when it changed its form, and the motives for it were then brought into line with the new and higher religion. The motive of keeping alive the name and memory of the childless man was substituted for that of securing the continuance of his worship; and the purpose of securing the permanence of property, landed property especially, in each household, was substituted for that of supplying means for the sacrifice. Later, themotive connected with the transmission of property possibly became the main one. For, since the levirate marriage came in, according to the strict wording of our passage, whenever a man died without a son, whether he had daughters or not, this marriage would seem to have been an alternative means of keeping the property in the family to that of letting the daughters inherit.[122]But the spirit of the higher religion, as well as a more advanced civilisation, was unfavourable to it. The custom evidently was withering when Deuteronomy was written, though in Judaism it was not disallowed till post-Talmudic times.
The impression, therefore, which the laws and customs regulating the relations of men and women in Israel give to the candid student must be pronounced to be a strangely mixed one. It would probably not be too much to say that it is at first a deeply disappointing one. We have been accustomed to fill all the Old Testament utterances on this subject with the suffused light of Gospel precept and example, till we have lost sight of the lower elements undeniably present in the Old Testament laws and ideas concerning purity. But that is no longer possible. Whether of enmity or of zeal for the truth, these less worthy elements have been dragged forth into the broad light of day, and in that light we are called upon to readjust our thoughts so as to accept and account for them. Evidently at the beginning the Israelite tribes accepted the uncivilised idea of woman. On that as a basis, however, customs and laws regarding chastity, marriage and divorce were adopted, which transcendedand passed beyond that fundamental idea. The moral complicity of woman, or her innocence, in cases where her chastity had been attacked, came to be taken into account. Polygamy, though never forbidden, received grievous wounds from prophets and others of the sacred writers; and as marriage with one became more and more the ideal, the higher teachers of the people kept the indissolubleness of marriage before the public mind, till Malachi denounced divorce in Yahweh's name. In regard to the bars to marriage there was little change, probably, from the days of Moses; but the old family rules were reinforced by a deep and delicate regard for even the less palpable affections and relations which grew up in the home.
The final attainment, therefore, was great and worthy enough; but the cruder and less refined ideas, which had been inherited from pre-Mosaic custom, always make themselves felt, and have even dominated some of the laws. They dominated, even more, the practice of the people and the theory of the scribes; so that on the very eve of His coming who was to proclaim decisively the indissolubility of marriage, the great Jewish schools were wrangling whether mere caprice, or some immodesty only, could justify divorce. Nevertheless the Decalogue, with its deep and broad command, culminating in prohibition even of inward evil desire, had always had its own influence. The teachings of the prophets, which breathe passionate hatred of impurity, had taught all men of good-will in Israel that the wrath of God surely burned against it. But the stamp of imperfection was upon Old Testament teaching here as elsewhere. Like the Messianic hope, like the future of Israel, like all Israel's greatest destinies, the promise of a higher life in this respect was darkened by the inconsistencies of general practice; and uncertainty prevailed as to the direction in which men were to look for the harmonious development of the higher potencieswhich were making their presence felt. It was in them rather than in the law, in the ideals rather than in the practice of the people, that the hidden power was silently doing its regenerating work. The religion of Yahweh in its central content, surrounded all laws and institutions with an atmosphere which challenged and furthered growth of every wholesome kind. The axe and hammer of the legislative builder was rarely heard at work; but in the silence which seems to some so barren, there slowly grew a fabric of moral and spiritual ideas and aspirations, which needed only the coming of Christ to make it the permanent home of all morally earnest souls.
With Him all that the past generations "had willed, or hoped, or dreamed of good" came actually to exist. He made what had been aspiration only the basis of an actual Kingdom of God. As one of its primary moral foundations He laid down the radical indissolubility of marriage, and made visible to all men the breadth of the law given in the Decalogue by forbidding even wandering desires. In doing this He completely surpassed all Old Testament teaching, and set up a standard which Christian communities as such have held to hitherto, but which from lack of elevation and earnestness they seem inclined in these days to let slip. That such a standard was ever set up was the work of a Divine revelation of a perfectly unique kind, working through long ages of upward movement. Humanity has been dragged upwards to it most unwillingly. Men have found difficulty in living at that height, and nothing is easier than to throw away all the gain of these many centuries. All that is needed is a plunge or two downwards. But if ever these plunges are taken, the long, slow effort upwards will only have to be begun again, if family life is to be firmly established, and purity is to become a permanent possession of men.