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The law of which I am about to speak is concrete law, 
not theories of law, but actual working rules of law or 
specific laws. I confine myself to the English Bible — 
generally to the Authorised Version. I feel strongly how 
much this little essay must suffer from my ignorance of 
post-biblical literature, especially the Talmudic. For its 
writers and thinkers were necessarily in a better position 
to comment on their classical writings, and, moreover, they 
must have had scholarly and legal traditions. 

To begin with, Hebrew law does not make the distinction 
between Civil and Criminal law, which, after all, is quite 
artificial, and between which in English law the line is not 
always clearly drawn. Certainly there is no trace of two 
corresponding kinds of tribunal — to us, frequently, the 
only visible sign of a difference. For instance, who would 
suppose that the non-repair of a highway — "the king's 
highway " (Num. xxi. 23) — was a crime, if it was not 
punishable on indictment after a trial by jury exactly as in 
a case of theft? Yet, in fact, there are many provisions 
of which the only object is to punish the wrongdoer — as 
a deterrent to others, — where there is no provision for 
compensation to the sufferer, and others where, except such 
compensation, there is no recognition that the state has an 
interest in preventing illegality — and this, after all, is the 
broad distinction in our system between the criminal and 
the civil. As jurisprudence progresses, it will be more 
and more felt that any infraction of the law is an offence 
against the state, because the slightest disobedience to the 

1 Adapted from an address to the Jews' College Union Society. 


law sets a bad example and tends to weaken public 
morality. But regarding only actual standards, I should 
say that much of the Hebrew civil law, some of the 
Decalogue, for instance, is elementary public morality — of 
course, evolved slowly from generations of custom — embody- 
ing the custom, the ideal custom, of the time in which it is 
promulgated, but without any express penal sanction. For 
instance, we may be sure that in the society which was 
exhorted to honour parents and not to covet other people's 
goods, as in our own, the notorious offender against these 
principles was made to feel the disapproval of his "set," 
without any formal prosecution. 

For the purposes of comparison, then, attaching no 
importance to the distinction between civil and criminal, 
I find that topics common to Hebrew and English law 
are the following: — Arson, Assault, Bailees, Blasphemy, 
Breach of Promise of Marriage, Burglary, Dangerous 
Animals, Debt, Kidnapping, Maintenance, Manslaughter, 
Murder, Negligence, Perjury, Perversion of Justice, Pledges, 
Poor Law, Real Property, Sanitary legislation, Succession, 
Theft — a list comprising Contract, Tort, and Crime. Finally 
there is the Assessment of Damages, and Procedure and 

A few words on each head, but not always in this order : — 

Exod. xxii. 6 is hardly a case of Arson : rather of negli- 
gence with damages. 

Bailees. Exod. xxii. 7-15 ; Lev. vi. a-5. 

The distinction between gratuitous or for reward is not 
made. Assuming bailment here to be gratuitous, then the 
law is that of Lord Hale : " the bailee is not answerable 
if they are stole without any fault in him, neither will 
a common neglect make him chargeable, but he must be 
guilty of some gross neglect " ; then he is chargeable. If 
the bailee pays for the use of the thing (ver. 15), " if it be an 
hired thing, it came for his hire," then the hirer is only 
bound to use the same care as a prudent man would of his 


own, i. e. a lesser degree than the utmost, which seems to 
be meant here. 

Where the bailee not only has nothing to get but has 
work to do on the thing, he is only liable for gross negli- 

An agister of cattle does not insure their safety, but if 
they are killed, injured, or stolen through his negligence, he 
is liable (v. 13). In Smith v. Cook, 45 L. J., Q. B. (1875), 
a colt agisted was gored to death by a bull : agister held 
liable, only because there was negligence. Thus, though 
the details are not the same, the principles are similar. 

Ver. 15. The stipulation that if the owner be with it 
the bailee is not liable for damage is exactly analogous to 
our rule, that if a contractor's employer personally controls 
the work he and not the contractor is liable for injury. 
The reason is obvious. 

Lev. vi. 3-5 adds nothing to this topic except as to lost 
property, for keeping which there may be, as with us, 
damages : with us it may be larceny also. 

Blasphemy. Exod. xxii. 28. Thou shalt not revile God 
[or the judges, R.V., the gods, A.V.]. 
The Law Mag. and Rev., Nov. 1907, writes: — "Until 
lately we punished offences against religion as severely as 
Moses did." This, perhaps, refers to the Hebrew punishment 
of idolatry and paganism — the prohibition of which can 
hardly date from the same age of thought as the toleration 
of " the gods," if A.V. is right above, which it probably is 
not. Otherwise there seems to be no formal enactment in 
favour of religion as such, except this — which, by the way, 
is highly inconsistent with a theocracy, as the early Hebrew 
State is sometimes described, for in a theocracy, blasphemy 
and kindred offences are inconceivable and assumed not to 
exist. " Nor curse the ruler of thy people." Seditious Libels 
are by no means extinct crimes to-day. Compare Scanda- 
lum Magnatum. Till 1887 an action lay for defamation 
or slander of a great officer, e.g. a judge: the last instance 
was in Queen Anne's reign. 


If the translation "judges" R.V. above is correct, it is 
the law of England to-day, common in cases of Contempt 
of Court. This leads to Perversion of Justice : — 

Perversion of Justice. 

The constant references to this crime point to a settled 
judicial system, indeed, they are the best evidence of it. 
The three great forms of tampering with the administration 
of justice are partiality of the judge, perjury of the witness, 
and interference of a third party. 

The law of this country is well provided against the 
peculation or favouritism of the judge, as it has had need 
to be. To the judge Exod. xxiii. 2, 8 are clearly addressed : 
the exhortation not to be swayed by popular clamour is 
never out of date. Perhaps " neither shalt thou speak 
in a cause, &c." is meant for the witness as well as the 
judge, especially if we read with R.V. "bear witness" for 
" speak." In this context we are justified in understanding 
"thou shalt not oppress a stranger" as a hint to the judge 
that justice knows no nationality. 

Breach of Promise of Marriage. Exod. xxii. 1 6 ; Deut. 
xxii. 28-9. 

In certain cases a breach of promise is assumed, and 
specific performance is, if possible, decreed. Thus this 
goes further than our law as the father's proprietary rights 
are also recognised, and damages are awarded him, just as 
in a somewhat similar action in our law. 

This form of breach of contract is expressly recognised 
in the case of the female servant, Exod. xxi. 8. Probably 
it was inconceivable in any other case, i.e. after betrothal 
of a freewoman. 

Theft and Burglary. Decalogue and Exod. xxii. 1. 

These ordinances are surprisingly scanty, but obviously 
contemplate a society with few personal chattels as we 
should think. There is restitution as with us, but damages 
in lieu of imprisonment: it must be remembered that 


many ancient peoples had no prisons in our sense. But 
note that ver. 3, " if he have nothing, &c." is literally the 
earliest instance of penal servitude. 

Note the law of homicide of a burglar — practically ours. 
You may kill in self-defence, and in justifiable homicide 
the element of its being night — essential to burglary — is 
always matter of mitigation. To this day " breaking " 
(ver. 2, " up," A.V. : " in," R.V.) must be alleged in an 
indictment for burglary. 

Kidnapping. Exod. xxi. 16. 

This form of stealing, perhaps, arose from the slave trade, 
like kidnapping, to supply the American plantations with 
servants. 43 Eliz. c. 13 was due to the capture of many 
subjects in the northern border counties. East (I, 430) in 
i8qo expressly wishes the offence was capital in place of 
many others. 

Debtors. Deut. xv. 1-18. 

In this country it clearly corresponds to (i) the Statute 
of Limitations ; (ii) as ver. 12 clearly shows, Imprisonment 
for Debt. This used to be met by periodical Insolvent 
Debtors' Acts which cleared the prisons. Cf. a discharge 
in bankruptcy to-day, which is, in effect, a starting fresh 
after a time. 

Pledges. Deut. xxi v. 6, 10-13. 

This rather recalls the law of distress than that of pawn- 
brokers. Both are part of the law of debt, and the finances 
of the proletariate have always been the subject of legislation. 

Notice that some chattels are not negotiable, so to say, 
as in a distraint implements of trade and wearing apparel 
are exempt — exactly as in Exod. xxii. 26: so here, the 
latter can only be taken for a day. 

Ver. 10 looks Uke the doctrine "a man's house is his 
castle " — to prevent inquisition. 

Vers.. 12-15 clearly contemplate a day labourer — even 
now a class paid daily. The spirit of these verses is that 
of the Truck Act, 1831. 


Crimes of Violence. Assault, Murder, Manslaughter. 

Assault. The lex talionis is now admitted to be a miti- 
gation of an earlier system. It means " do not take more 
than one eye for one eye," and as to life, no blood-feuds. 
There seems to be no instance (except Adoni-bezek, Judges 
i. 6-7, and that not judicial) of its literal application — 
except for murder. Probably it was early commuted to 
a pecuniary tariff. This is perfectly clear from the context, 
Exod. xxi. 18-19, 20-1, 26-7. 

The right to moderate "correction" or chastisement of 
servant or apprentice exists in English law. 

Murder and Manslaughter. Exod. xxi. 12. The law is 
in some respects like ours — with regard to the evidence of 
motive, the weapon used, the punishment, and Coroner's 
inquisition (Deut. xxi. 1). Circumstantial evidence seems 
to have been admitted, if there was corroboration. 

As to motive, see Exod. xxi. 13-14; Num. xxxv. 20-1 ; 
Deut. xix. 4-1 1. As to weapon, see Exod. xxi. 20 ; Num. 
xxxv. 16-18. As to the inquest, note the local responsi- 
bility (Deut. xxi. 2). 

The law, too, as to justifiable homicide (Exod. xxii. 2-3) 
seems to be on our principle, when a man is slain in 
committing a felony. 

Note, too, the touch, Exod. xxi. 21, " if he continue a day 
or two." So v. 19, "if he rise again and walk abroad." 
The interval makes all the difference : in our common law 
it is a year and a day. 

Substantially there is our distinction between murder 
and manslaughter — a natural distinction. The "avenger 
of blood" (Deut. xix. 6) or " revenger" (Num. xxxv. 19) is 
clearly the earliest private prosecutor, no doubt earlier than 
the State. From the vendetta, in primitive times as now, 
there is only one way of escape — flight, and the farther the 
better — "the way is long" (Deut. xix. 6) — if possible, out 
of the jurisdiction, or out of the territory, as Jeroboam fled 
to Egypt (1 Kings xi. 40). Then after a time comes the 
demand for surrender or extradition, by the prosecutor, 


literally, the follower-up. There is a judicial enquiry 
(Num. xxxv. 2,4), just as now, whether the offence is 
extraditable, which only murder is. If it is, the punish- 
ment is certain death, for by vers. 12-13 there is no 
commutation, and the avenger is entitled to the culprit 
(Num. xxxv. 19). But, on the other hand (Num. xxxv. 25), 
if they find manslaughter, there is still punishment — 
banishment in the place of refuge for an indefinite period — 
quite a definite punishment, for if he breaks bounds, the 
right of the revenger reverts. If he serves his sentence the 
prosecutor's right is gone, his blood has had time to cool, 
whereas at first his " heart " was " hot " (Deut. xix. 6) — the 
exact distinction of our law — and to kill him would be 
murder. Note that the doctrine of sanctuary is ecclesiastical 
not Hebrew: Exod. xxi. 14, the murderer is to be taken 
even from the altar — and to execution. 


In the case of a bailee this ground for damages has been 
clearly recognised. The same principle is seen in Exod. 
xxi. 33 — a case common in our courts which administer 
this very law. Note a real juridical touch in the property 
of the dead beast passing to the defendant who has paid 
damages for it. The principle of negligence is recognised 
both civilly and criminally (ibid., 28-36) in the instance 

Dangerous animals. Criminally, just as our law regards 
the letting loose wilfully a vicious animal as murder, if it 
kills ; so here death is decreed. 

Civilly, not only are damages allowed, but the doctrine 
of the " one bite," notorious in the case of the English dog, 
is implied in the distinction between the known and 
unknown propensities of the animal. 

Perjury. The Decalogue ; Exod. xxiii. 1 ; Deut. xix. 

Law Mag. and Rev., as above: "The perjurer was to 
undergo the punishment which he sought to bring upon 


his innocent neighbour by his perjury. This is a much 
more rational rule than that of the English law, under 
which murder by perjury — the worst kind of murder — is 
only punishable by . . . penal servitude." 

Now, it happens that on this point — where false witnesses 
have sworn away the life of an innocent man — there was, 
in a case where men had been executed for robbery, a great 
legal discussion whether this amounted to murder, and the 
gang of miscreants were actually indicted for murder. 
But the prosecution on that charge was dropped and the 
point was never settled. I have no doubt that in Hebrew 
law this form of the lex talionis applied directly, partly 
because it is repeated in this passage (Deut. xix. 21) and 
partly because in Exod. xxiii— where, as we have seen, the 
administration of justice is dealt with, ver. 7 is " keep thee 
far from a false matter: and the innocent and righteous 
slay thou not." 

Maintenance. Exod. xxiii. 2 may refer to testimony or 
to unwarrantable interference with the course of litigation. 
The next verse clearly refers to the latter, which is punish- 
able by English law. So, too, Lev. xix. 15, " thou shalt not 
respect the person of the poor." I am not aware of any 
other system which formally discourages partiality even 
from charitable motives— the tendency is generally in 
favour of another class. This clearly means when the 
cause is unjust. It is no offence in English law to maintain 
a poor suitor in an honest claim, nor is it against the spirit 
of Hebrew legislation, but quite the reverse. 

Poor Law. Deut. xiv. 28-9. 

I suppose this is the first poor law. Tithe is one of the 
few institutions taken direct from Hebrew civilisation. 

Eeal Property. 

It has been said that the Hebrew land-system was that 
of " peasant proprietorship " (Law. Mag. and Rev. above). 
Encyc. Biblica (" Law and Justice ".) says that no ger could 
vol. xx. 3 G 


hold land, owing to the operation of the year of jubilee, and 
cites Mic. ii. 5 ; Is. xxii. 16, and Ezek. xlvii. 22, "where the 
permission to do so is brought in as an innovation." But 
except the last, these passages seem to me to have little 
to do with the matter. He could certainly hold Hebrew 
slaves till the jubilee (Lev. xxv. 47). At any rate till 
1870 (Naturalisation Act) an alien could not own or lease 
land in this country. 

There is a Statute of Distributions (Num. xxvii. 7-1 1). 
The doctrine of next-of-kin is naturally recognised. 

Sanitary Legislation. 

Lev. xiv. 34-48 deals with insanitary dwellings: the 
Local Authority is the priest, who may order disinfection. 
A quite recent writer in the Law Mag. and Rev., Nov. 
1907, on "the Law of Moses" says: "a century since it 
was badly wanted in England." There is abundance of 
it now. 

Weights and Measures. 

Lev. xix. 35-6 ; with this 41-2 Vict. c. xlix, s. 25— 
Weights and Measures Act — coincides verbally to some 


Various instances ax-e Exod. xxi. 22, 30, 36, xxii. 1 ; Lev. 
vi. 5. 2 Sam. xii. 6, David gives judgment of death and of 
four lambs for one. Note especially Exod. xxi. 22— the 
judges fix the amount. 


There was certainly a regular system, becoming more 
definite with time. It was based on the still prevalent system 
in the East of a rank of local notables — cf. our borough 
and county J.P.'s — but how appointed we do not know : in 
history they are called "elders." Two distinct accounts 
(Exod. xviii. 13-14 and Deut. i. 13-17) trace this system to 
one dictator or reformer— Moses : both profess distinct 


juridical practice. Originally one judge sits ' : alone" 
(Exod. xviii. 14) like the Chancellor used to in England. 
Then deputies are appointed, like the vice-chancellors, and 
there is an appeal to the chief judge (Exod. xviii. 22, so Deut. 
i. t 7), or later, perhaps, to the Crown. Or ver. 22 may mean 
a distinction according to the magnitude of the litigation — 
like ours between County Court and High Court. The 
business of the Court is distributed, Exod. xviii. 21, 22 — who 
are the rulers of 1000, 100, 50, 10 ? It cannot be a gamut 
of appeal courts — that wealth of litigation is reserved for us. 
I suppose the numbers are those of population, i.e. so many 
justices, so to say, to every ten householders. If so, we may 
compare it with our existing " hundreds " — " originally so 
called because each consisted of a hundred families of free- 
holders or ten tithings. Each hundred formerly had its 
Court" (Sweet, Law Lex.). Perhaps the inferior courts stated 
a case for the Supreme Court : Deut. xvii. 8-1 1 looks like it. 
There is an appeal to the king in person — the woman of 
Tekoah (2 Sam. xiv). So the judgment of Solomon 
(1 Kings iii. 16), who built himself a new court-house 
(1 Kings vii. 7). The sovereign power will get the judicial, 
if it can ; hence, the sacerdotal party puts the priests before 
the judges (Deut. xvii. 8-9). 

The " Book of Judges x " illustrates the connexion between 
political power and the judicial. Samuel "judged " Israel 
(1 Sam. vii. 1 5) and actually went " circuit" (ibid., 16,17) an d 
sat " in all those places." So later, at the Restoration, Ezra 
re-organizes the judiciary (Ezra vii. 25). Otherwise, we 
know of no special officials : the Shoterim do not seem 
to have been specially legal, nor the " recorder " (2 Sam. 
xx. 24; 1 Chron. xviii. 14, 15), literally "remembrancer" 
— though belonging to the learned class and having a 
knowledge of precedents. In David's constitution (1 Chron. 
xxiii. 4) there were 6,000 officers and judges. These of 

1 The real translation of Shofetim is not Judges but Lat. magistrates. With 
Deborah cf. the famous Ann, Countess of Pembroke, &c, hereditary and 
acting Sheriff of Westmoreland (d. 1675). Hargrave on Co. Litt. 326 a. 



course must have been distributed : and this is distinctly 
stated of Jehoshaphat (2 Chron. xix. 1, 5, 8-1 1). This is 
enjoined (Deut. xvi. 18): the elders in the gate are a 
permanent feature (Deut. xvii. 5), and (Deut. xxii. 15) they 
assess damages between husband and wife. The instance 
of Samuel, above, reads like modern. In Ezra's constitu- 
tion (Ezra x. 14) elders and judges seem to be co-ordinate. 
Most instructive as to local tribunals is the story of Naboth 
(1 Kings xxi. 8), because the extortion is expressly to be 
committed injudicial form. The Crown commissions "the 
elders and . . . nobles " on the spot to try the issue. The 
tribunal may have been innocent. 

The only known law of evidence is Corroboration (Num. 
xxxv. 30; Deut. xvii. 6, xix. 15), roughly our rule in 
perjury (and one or two other cases). The defendant 
sometimes gives evidence on oath (Exod. xxii. 11). 

Arbitration is not unknown (Job ix. 33), " a daysman " 
and sureties are employed (Prov. vi. 1, xxii. 26). 

There is a written deed of conveyance (Jer. xxxii. 9-10). 


What punishment could they inflict ? Ezra vii. 26 later 
enumerated : death, banishment, confiscation of goods, 
imprisonment. This was under the influence of foreign 
power and methods. Earlier : fines, either as compensation 
or penalty, flogging or death (Deut. xxv. 1-3, xxii. 18). 

To sum up, in the words of a writer in the Jeivish 
Encyclopaedia (Law, Civil): "After the period of the 
supremacy of ancient tribal customs, came the Torah, con- 
taining codes of law on various subjects. Here is the first 
law in the modern sense, a series of statutes and ordinances 
succinctly expressed and written down by the authority of 
a law giver. The Torah legislates for a stage of society 
higher than that of the nomad. It is intended for a people 
settled on the soil and devoted largely to agriculture. 
Herein will be found its limitations. It knows little of 
commerce or contract in the modern sense ; its regulations 


are comparatively primitive and are expressed in terse 
sentences and with little comment. The simplicity of the 
Biblical civil law is best illustrated by the fact that it is 
all contained in fifteen chapters of the Bible, and in some 
of these chapters occupies the space of only a few verses. 
The bulk of the civil law is found in two codes (Exod. 
xxi-xxiii and Deut. xxi-xxv) concerning slaves, land, in- 
heritance, pledges, loans and interest, bailments, torts, 
marriage and divorce, and legal procedure. Exod. xviii 
and Deut. xvii treat of the constitution and jurisdiction of 
the courts : Lev. xxv and Deut. xv treat of the laws of the 
jubilee, of the sabbatical year, and of ransom; Lev. xix 
treats of the poor laws, and Num. xxvii and xxxvi of the 
laws of inheritance. This is substantially the entire 
Biblical civil law, which grew to enormous bulk in the 

"That these laws were intended for an agricultural 
people is obvious. The sale of land was not favoured. . . . 
Personal property other than that which is incident to 
the land, such as cattle, is hardly mentioned, and there are 
no regulations concerning its transfer except the general 
injunction to be just in weights and measures (Lev. xix. 35 ; 
Deut. xxv. 14, 15). Written contracts were unknown; 
all transactions were simple, and were easily made a matter 
of public record by being accompanied by the performance 
of some formal act in the presence of witnesses. Legal 
process was likewise simple ; the judges spoke in the name 
of God [Exod. xxii. 38, 'Elohim'=A.V.'s 'Judges'], and it is 
not unlikely that the judgment of Solomon fairly repre- 
sents the simple and direct method pursued by them in 
seeking to do justice. In doubtful cases the ' oath of the 
Lord' (Exod. xxii. 11) was administered to settle the 

Finally, I may cite Sir Robert Anderson, Nineteenth 
Oentury (Feb. 1908) : "... the law of Sinai. Turning to 
that code, therefore, I seize upon two of its characteristic 
features. The one is the marked distinction it draws 


between offences deliberately planned and offences due 
to sudden temptation or otber accidental circumstances. 
That law had nothing but stern severity for deliberate 
lawbreakers, but in its treatment of the erring and the 
weak it was the most merciful code ever framed." 

" And if effect were systematically given to that other 
feature of the code of the theocracy, and the interests and 
rights of the victims of cx"ime were always remembered 
and enforced, the trade of the x>rofesskmal thief and profes- 
sional receiver would be destroyed." 

Those who are curious as to the direct borrowing of 
English law from Hebrew law may like to see the following 
passages : — 


Alfred. D.N.B. by E.A.F.— "What is specially cha- 
racteristic of Aelfred's laws is their intensely religious 
character. The body of them, like other Christian Teutonic 
codes, is simply the old Teutonic law, with such changes — 
more strictly, perhaps, such additions — as the introduction 
of Christianity made needful. What is peculiar to Aelfred's 
code is the long scriptural introduction, beginning with the 
Ten Commandments. The Hebrew Law is here treated 
very much as an earlier Teutonic code might have been. 
The translation is far from being always literal; the 
language is often adapted to Teutonic institutions, while, 
on the other hand, some very inapplicable Hebrew phrases 
and usages are kept, and the immemorial Teutonic (or 
rather Aryan) institution of the wergild is said to be a 
merciful invention of Christian bishops." 

Reference may also be made to an essay published since 
this article was in the printer's hands. It is on "King 
Alfred and Mosaic Law," by Prof. F. Liebermann. (See 
Transactions of the Jewish Historical Society, vol. VI, 1908, 
advance fascicule 2.) 



Maitland, Mirror of Justices, about 1300. "There is 
a curious trait of bibliolatry, a tendency to collect pre- 
cedents out of the Old Testament and to find legal maxims 
in the ancient laws of the Hebrews, a tendency which the 
mediaeval Church very wisely repressed, for it leads to 
a justification of the judicial combat by the precedent of 
David v. Goliath and an acceptation of eye for eye and 
tooth for tooth." 

The author (p. 109) actually says "proof in cases of 
felony and in other cases is made by combat," citing David 
v Goliath. 

Plowden (1578) distinctly says that Christian kings have 
made their laws as near laws of God as they could, and 
therefore from Deut. xvii. 6 and xix. 15 there must be two 
ivitnesses at every trial. 

Herman Cohen.