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784 THE JEWISH QUARTERLY REVIEW
SOME NOTES ON RESEMBLANCES OF
HEBREW AND ENGLISH LAW 1 .
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.
RESEMBLANCES OP HEBREW AND ENGLISH LAW 785
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
786 THE JEWISH QUARTERLY REVIEW
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.
RESEMBLANCES OF HEBREW AND ENGLISH LAW 787
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.
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
788 THE JEWISH QUAETERLY REVIEW
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
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.
RESEMBLANCES OP HEBREW AND ENGLISH LAW 789
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,
790 THE JEWISH QUARTERLY REVIEW
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
RESEMBLANCES OF HEBREW AND ENGLISH LAW 791
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.
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
792 THE JEWISH QUARTERLY REVIEW
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.
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
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
KESEMBLANCES OP HEBREW AND ENGLISH LAW 793
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.
794 THE JEWISH QUARTERLY REVIEW
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
RESEMBLANCES OP HEBREW AND ENGLISH LAW 795
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
796 THE JEWISH QUARTERLY REVIEW
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.)
RESEMBLANCES OP HEBREW AND ENGLISH LAW 797
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
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.