The political equality of the people, without either nobles or peasants properly so called, was, as we have seen, a fundamental principle of the Mosaic constitution. This could not but give the state a strong democratic tendency. Nor is it matter of surprise that on this foundation Moses established a commonwealth, rather than a monarchy. On this point, there is scarcely a dissenting voice among all the learned men who have written upon these institutions. Mr. Horne does but echo the general opinion, when he says that "the form of the Hebrew republic was unquestionably democratic."
Moses did not, indeed, by an unchangeable law, enact that no alteration should ever be made in the form of government. On the contrary, his prophetic eye foresaw that the time would come when his countrymen, infected and dazzled by the example of the surrounding nations, would lose their relish for republican simplicity, and would demand the splendors of a throne and a court. But it was not his wish that they should have a king. Upon this point he reasoned, he dissuaded, he expostulated, he warned. The spirit of his law was strongly against monarchy, and all who afterwards maintained that spirit were equally strong against it. This was the case with Gideon, who indignantly rejected the offer of a crown. This was the case with Samuel, that model of a popular magistrate. He remonstrated, solemnly and eloquently, with the people, against their rash determination to have a king. He told them that they were fastening upon themselves an oriental despotism, that their kings would rule them with a rod of iron, and that they would repent of their rashness when it was too late. The truth is that all who followed the maxims of the founder of the state, set their faces against usurpation and maintained the rights of the people at all hazards, and in the most disastrous times.
Foreseeing, however, that all his admonitions would, in the end, prove unavailing, Moses enacted a fundamental law to define and limit the power of the future kings. This law is found in the seventeenth chapter of Deuteronomy. Despotism seems to be the native growth of the East. Man there, cradled in servitude, becomes fitted to listen to his fate in the mandates of a tyrant. The climate dissolves the energy of the heart, and hence the people of the East have always been mere children in respect of political institutions. Indolence loves to gaze, and hence they have ever been delighted with the trappings of royalty, and have been prone to look on an earthly king with a veneration approaching to idolatry. The pomp of their sovereign feeds their vanity; his power is their pride. They have no notion of popular freedom. Hence a chief magistrate, subject to the laws of his people, a constitutional king, is a conception foreign to all their habits of thought and feeling. In Egypt, Moses had witnessed the abuse of the regal power; in the wilderness, he had observed the tyranny of the petty despots in the neighborhood of Israel. Hence the enactment of the law referred to above. The particular provision of this law will be examined in another chapter. I will only observe now, in passing, that they were such as to insure, whenever the anticipated change in the form of polity should take place, the existence of a constitutional monarchy. The king, permitted by Moses to the folly of his countrymen, was, in truth, what a late monarch in France1 claimed to be, a "citizen king," a popular magistrate, rather than an arbitrary sovereign. If the Hebrew statesman could not wholly resist the proclivity of his nation to the regal form of government, he at least, with prescient wisdom, limited the power entrusted to the hands of royalty. In this he shows how thoroughly his own spirit was impregnated with democratic principles, how deep was his hatred of tyranny, and how ardent and irrepressible his sympathy for the rights, the liberty, and the happiness of man.
Considerable difference of opinion exists among the learned in regard to the number and nature of the departments of the Hebrew government, and the officers by whom the administration of public affairs was conducted. The mixture of civil and military authority, which marks this constitution, the blending of the legislative and judicial functions in the same assembly, the union of various and, according to our way of thinking, somewhat incongruous powers in the priesthood, the apparent chasms2 in the Mosaic legislation arising from the frequent retention by Moses of ancient consuetudinary laws, without any formal introduction of them into the body of his own laws, and the extreme brevity of the history of the Israelitish state, as contained in the sacred books, are the causes of that obscurity, which has operated to produce this diversity of opinion. As far as I have been able to satisfy my own mind, the following statement embodies the radical features of this ancient and venerable polity.
Each of the Israelitish tribes formed a separate state, having a local legislature and a distinct administration of justice. The power of the several states was sovereign within the limits of their reserved rights. Still, there was both a real and a vigorous general government. The nation might have been styled the united tribes, provinces, or states of Israel. The bond of political union between the sovereign states appears to have been fourfold. In other words, there were four departments of the Hebrew government, viz., the chief magistrate, whether judge, high priest, or king; the senate of princes; the congregation of Israel, the popular branch of the government; and the oracle of Jehovah, a most interesting and singular part of the political structure. The form of a legal enactment might have run somewhat after this fashion: "Be it enacted by the senate and congregation of Israel, the judge approving, and the oracle concurring." There was a judiciary system, in which causes of a sufficient magnitude could be carried up, through courts of various grades, till they came, for final adjudication, before a supreme national court, which held its session in the capital of the nation. Finally, on the one hand, the organization of the tribe of Levi gave vitality to the whole system, acted as a counterpoise to the democracy, and restrained its excesses, while, on the other, the prophetical order maintained the rights of the people, and formed a powerful barrier against the encroachments of arbitrary power.
A knowledge of the polity of the Hebrews prior to the time of Moses will help us in understanding his constitution, since he retained in it many of the ancient laws and institutions, sometimes unaltered, sometimes slightly modified. The simplicity of ancient manners rendered complicated methods of government unnecessary. The form actually employed by most nations in the earliest times, appears to have been patriarchal. To this rule the Hebrew polity does not form an exception. Abraham, Isaac, and Jacob governed their families with an authority well-nigh unlimited. Their power over their households was little short of a sovereign dominion. They were independent princes. They acknowledged no subjection, and owed no allegiance, to any sovereign. They formed alliances with other princes.3 They treated with kings on a footing of equality.4 They maintained a body of servants, trained to the use of arms; were the chiefs, who led them in war; and repelled force by force.5 They were the priests who appointed festivals and offered sacrifices.6 They had the power of disinheriting their children,7 of sending them away from home without assigning any reason,8 and even of punishing them capitally.9
The twelve sons of Jacob ruled their respective families with the same authority. But when their descendants had become numerous enough to form tribes, each tribe acknowledged a prince as its ruler.10 This office, it is likely, was at first hereditary in the eldest son, but afterwards became elective. When the tribes increased to such an extent, as to embrace a great number of separate households, the less powerful ones united with their stronger relatives, and acknowledged them as their superiors. In this way, there arose a subdivision of the tribes into collections of households. Such a collection was technically called a family, a clan, a house of fathers, or a thousand.11 This last appellation was not given, because each of these subdivisions contained just a thousand persons, or a thousand households; for, in the nature of things, the number must have varied, and in point of fact, it is manifest from the history, that it did. As the tribes had their princes, so these clans, families, or thousands had their respective chiefs, who were called heads of houses of fathers, heads of thousands, and sometimes simply heads.12 Harrington denominates these two classes of officers phylarchs, or governors of tribes, and patriarchs, or governors of families. Both, while the Israelites were yet in Egypt, were comprehended under the general name of elders.13 Whether this name was a title of honor, like that of sheik (the aged) among the Arabs, and that of senator among the ancient Romans, or whether it is to be understood, according to its etymology, as denoting persons actually advanced in years, is uncertain; probably, however, the former is the true sense of the term. These princes of tribes and heads of thousands, the elders of Israel, were the rulers of the people, while they remained still subject to the power of the Pharaohs, and constituted a kind of "imperum in imperio." Of course they had no written constitution, nor any very formal code of laws, but governed by custom, reason, and the principles of natural justice. They watched over and provided for the general good of the community, while the affairs of each individual household continued under the control of its own father. For the most part, it may be supposed, only those cases which concerned the fathers of families themselves would come under the cognizance and jurisdiction of the elders.
Such was the patriarchal form of government. It was found among all the branches of Abraham's posterity--Ishmaelites, Edomites, and Israelites alike. Each of these, like the ancient Germans, the Roman gentes, and the Scottish clans, kept together in a body, according to their tribes and families. Every tribe formed a little commonwealth, having its own particular interests, while all united became a great republic with a common weal. Thus we find the Ishmaelites governed by twelve princes, according to the number of Ishmael's sons.14 Their descendants, the Bedouin Arabs, have preserved the patriarchal polity to this day. They call their princes emirs, and their heads of clans sheiks--elders--under which latter designation, the Hebrews included both these orders of rulers. In like manner, the Edomites had what the sacred historian calls kings, but under them, again, stood a multitude of chiefs, styled princes, who ruled over so many clans.15 The same arrangement took place among the Israelites. That there were twelve great tribes is known to all. That the tribes were governed, each by its own prince, that they were subdivided into clans, or groups of related families, having also their respective chiefs, and that these princes of tribes and chiefs of clans received the common appellation of "elders of Israel," will be evident to anyone who will take the trouble to compare the first chapter of Numbers with Exodus 3:16, 4:29, and 6:14-15.
Another order of officers, who, in the end, came to possess great dignity and power, likewise sprang up among the Hebrews, while yet in Egypt. These were the shoterim, in our version rendered "officers." That they were different from the judges is certain, since Moses ordained that when the Israelites came into the promised land, they should appoint both judges and shoterim in every city.16 What the duties of these functionaries were, there is not much difficulty in determining. The emirs among the Arabians, a people very nearly related to the Hebrews, and retaining many of the ancient customs common to all the descendants of Abraham, have their secretaries, a class of officers evidently very similar to the Israelitish shoterim. The most important business of the shoterim was to keep the genealogical registers; to record accurately the marriages, births, and deaths among the people; and probably, as they kept the rolls of families, to apportion the public burdens and services on the people individually. Modern governments, indeed, have no office exactly corresponding to this, because they do not regulate their affairs in this genealogical manner; they do not take the census of the people by families. But among a people like the Israelites, whose ideas were altogether clannish, a people with whom all hereditary succession and all posthumous fame depended on genealogical descent, this must have been an office at least as important as that of a judge. The proof that this office existed in Egypt is clear and certain, for the Hebrew shoterim were employed, under the direction of Hebrew overseers, to apportion and press forward the labors exacted from the people.17 It is likely that originally the princes of tribes and chiefs of families performed the duties of genealogists, but that afterwards, to ease themselves, they employed secretaries to do the work for them, who came at length to constitute a distinct order of magistrates, under the name of shoterim.
Such was the polity which Moses found established among his countrymen, when he returned to Egypt after a forty years' residence in Midian. The time had now come, when, agreeably to the divine purpose, the chosen people were to be delivered out of the hand of their oppressors, and put in possession of the land of promise. They were no longer to pursue the nomadic life of their ancestors, but were to be settled, as an agricultural people, in fixed habitations. As a nation, they were designed to answer very important purposes in the divine plan. It was, therefore, necessary, that they should receive new political institutions, suited to their new circumstances and high destination. To this end Moses led them to the foot of Sinai, where the tribes freely elected Jehovah to be their king, a solemn compact was formed between the sovereign and the people, and the civil constitution was settled upon this foundation. Thus Jehovah, in accordance with the prevalent notion of those ages, condescended to be the national and tutelar deity of the Hebrews; his worship was made the fundamental law of the state, and idolatry became a political crime.
But the theocratic element in this constitution did not make a fourth form a government, in addition to the three forms, with which the world is familiar. It was not a political constitution, fundamentally different from the monarchical, aristocratical, democratic, and mixed forms of polity. Warburton has shown that the theocracy continued to the coming of Christ. But during the period intervening between the establishment of the constitution by Moses and the birth of the Messiah, the government underwent many changes, and assumed a variety of forms. It was democratic till the time of Saul, monarchical from his accession to the throne till the captivity, and aristocratical after the restoration of the Jews to their own country; but through all these revolutions it retained the theocratic feature. We may, therefore, proceed in our study of this constitution, and in the attempt to present a true analysis of it, just as we would perform a similar labor in reference to the constitution of Rome or England.
The patriarchal polity, of which a brief sketch is given above, Moses retained unaltered. The subdivision of tribes into collections of families remained as it had been before. At the time of the exodus, the later clans of this sort, exclusive of the tribe of Levi, amounted to fifty-eight, and their chiefs, in conjunction with the twelve princes of tribes, formed a council of state, consisting of seventy members.18 It is evident, however, that the principle of subdivision was carried much farther than a perusal of the twenty-sixth chapter of Numbers would at first lead us to suppose. There must have been a division not noticed by the historian, according to which the collections of families were far more numerous, and of course the number of heads of families far greater, for no less than two hundred and fifty chiefs of this rank joined the rebellion of Korah.19 The princes of tribes and chiefs of families were the natural representatives of the people and magistrates of the state. They commanded their respective tribes in war and guided their counsels in peace. They appear to be alluded to in the song of Deborah as those who "ride on white asses and sit in judgment," a passage in which, I am inclined to think, there is a reference to this union in their persons of civil and military authority. Whether these officers were elective or hereditary seems hard to determine. Harrington considers them hereditary. Jahn inclines to regard them as elective. Lowman doubts. Michaelis can find no trace of the manner in which they were chosen. I rather think that Jahn is right. At least it is certain that the office was not strictly hereditary in the firstborn of the tribe or the family. This is plain from the case of Nahshon. Though he was prince of Judah, he was not the heir-male of the tribe. He was the son of Aminidab, the son of Ram, who was a younger son of Hezron, the son of Pharez, himself a younger son of Judah, the original patriarch of the tribe.20 This certainly is not a proof that the office was elective, but it looks that way; and the analogy of other offices in the Hebrew government strengthens the probability.
Another order of functionaries, retained by Moses, was that of the shoterim, translated in our Bible "officers." In Numbers 11:16 and Deuteronomy 29:10, they are named in connection with the elders, that is, the princes of tribes and heads of families. they were, therefore, magistrates and representatives of the people. However obscure and uninfluential their office might have been originally, it gradually acquired importance, till it came at length to be one of great dignity and authority. We have seen before that they were the keepers of the genealogical tables. In Egypt, they were charged with seeing that every Israelite delivered the required number of bricks.21 It was their business to give their discharge to citizens, who were by law exempt from military duty.22 Another function appertaining to them was to communicate to the people the orders of the general respecting military affairs.23 From the shoterim and elders together, as being persons of the highest respectability, the supreme senate of seventy was to be chosen.24 We find them repeatedly mentioned as forming a part of the legislative assemblies of the nation.25 And in the time of the kings, we find the chief shoter, though not a military commander, exercising a general superintendence and control over the whole army.26 When the nation was settled in Palestine, the shoterim were distributed into every city, and performed the duties of their office for the city and its surrounding district.27 They could not properly discharge their functions without having accurate catalogues of the names of the Hebrews, with a record of the age, pecuniary ability, and domestic circumstances of each individual master of a household. There appears evidently to have been a chief genealogist, who was the president of the whole order, and exercised a general superintendence over the affairs entrusted to them. Several of these chiefs are mentioned by name under the kings.28 In 1 Chronicles 24:6 and Jeremiah 52:25, mention is made of a "principal scribe of the host," that is, a chief shoter, "who mustered the people of the land" for war.
How the shoterim were chosen, the history does not distinctly inform us. There is little difficulty, however, in gathering from what it does say concerning them, that the office was elective. While the Hebrews dwelt in Egypt, and before the Levites had been set apart from the other tribes, and consecrated to letters and religion, they must either have been selected out of every clan, or, more probably perhaps, chosen from the whole tribe, irrespective of families, according to the opinion entertained of their fitness for the office. After the Levites had become fairly installed in their office, as the learned class, the genealogists were generally taken from among them.29 "This was a very rational procedure, as the Levites devoted themselves particularly to study; and, among husbandmen and unlearned people, few were likely to be so expert at writing, as to be entrusted with the keeping of registers so important."
The magistracies, thus far notice, formed a part of the polity of the Hebrews, before the exodus from Egypt. But, by the advice of Jethro, which was confirmed by their king Jehovah, Moses instituted a new order of rulers, which must now be explained.30 Although in Egypt the Hebrews had a sort of political government among themselves, yet it is not to be supposed that they would be permitted to hold regular courts for the trial of civil causes. Hence they had no judges in their bondage, being subject to Egyptian magistrates in that capacity. On their leaving Egypt, Moses took the whole judicature upon himself, and was for some time sole judge. But this was too much for mortal strength, and, from the little attention that could be given to each individual case, not altogether consistent with the public interest. His father-in-law, who appears to have been a man of great judgment and wisdom, convinced him of this, and by his advice he instituted judges. The principle on which he arranged the institution was a remarkable one, and must have been suggested by the military divisions of the people. He appointed judges for thousands, hundreds, fifties, and tens--in all about 78,600.31 There was a regular gradation of rank among these judges, and, in all probability, such a subordination of the inferior to the superior, that the cases which the judges of tens found too hard for them, they referred to the judges of fifties; in the same manner, the cases which these latter found too difficult to decide, they passed over to the judges of hundreds; questions too intricate or too important in the opinion of the judges of hundreds for their determination, they carried up to the judges of thousands; who, in their turn, referred difficulties too great for their resolution to Moses, or, after his death, to the supreme judicial authority, in whomsoever lodged.
The principle of this judiciary system was that the administration of justice should be brought to every man's door, and of course that it should be prompt and cheap, notwithstanding which, care was taken to avoid the evils of hasty and partial decisions, by the right of appeal to tribunals of a higher grade, when the case was of sufficient magnitude to warrant such a resort. This principle was retained in the judicial system of the nation after its settlement in Palestine. But the system itself necessarily underwent some modifications. It could not remain exactly as it was for the people no longer lived together, as in the wilderness. On their taking possession of the promised land, judges, as well as shoterim, or genealogists, were to be appointed in every city,32 who were to discharge the duties of their respective offices for the city and the surrounding district. Yet even the plan proper for Israel as an army marching was not altogether unsuited to their settlement in permanent habitations, as tribes and families. The military division might have its counterpart in a civil division into counties, centuries, and decuries. The old Saxon constitution of sheriffs in counties, hundreders or centgraves in hundreds, and deciners in decennaries, was formed upon this model. Lord Bacon is of the opinion that King Alfred took this frame of government from the laws of Moses. Whether the judges were to be natives of their respective cities, or even of the tribe in whose territory the cities were situated, or whether the fittest persons were to be chosen, without regard to tribe, family, or residence, does not appear from the history. The latter supposition is rendered probably by the fact that in after times the office was very generally filled by Levites.33 This might, not improbably, have been the intention of Moses, which he did not seek to render effective by any legal enactment, as foreseeing that the thing would happen naturally, since the Levites, devoted to learning by the very constitution of their tribe, would best understand the laws of the land. Besides, it is quite conformable to the ideas of those times, and not foreign to the notions and manners of the East in all ages, that the judicial and sacerdotal offices should be united in the same persons. Among the ancient Egyptians, the priests were the usual administrators of justice. The Arabs resorted to the temples and the priests for justice. Before the time of Mahomet, they even carried on law-suits before their gods. This he prohibited, but to this day, the seat of justice is commonly called by the Arabs God's tribunal, and the usual form of citation is, "Thou art invited to the tribunal of God."
The chief function of the Israelitish judges was to administer justice between man and man.34 It is possible, and, looking to the general spirit and frame of the Hebrew constitution, not improbable, that they united some degree of military power to their civil authority. They are mentioned as among the persons summoned by Joshua to the legislative assemblies.35 It is hardly probable, however, that the 72,000 judges of tens and fifties had seats and voices in these diets. It is more likely that only those of hundreds and thousands, perhaps even only the latter of these classes, are to be understood when judges are mentioned as constituting a part of the public deliberative assemblies of the Hebrews.
The judicial office among the Hebrews was elective. Josephus says so expressly, though with hardly greater plainness than Moses. "Take you wise men, and understanding, and known among your tribes, and I will make them rulers over you,"36 were the lawgiver's words to his countrymen, when he instituted the office. The only function which he here claims for himself is that of commissioning those whom the people should elect. Even the supreme judge was chosen by the free suffrages of the people. The historian distinctly informs us that "the people made Jephthah head and captain over them."37 Four stages may be noted in the proceedings relating to Jephthah--the preliminary discussion, the nomination, the presentation to the people, and the installation.38 The enemy was encamped in Gilead. At this point, the people and their rulers, assembled in convention on the plain, said to one another, "Who shall be our chief, to lead us against the foe?" This was the discussion, in which every citizen seems to have had the right to participate. In the exceedingly brief history of the affair, it is not expressly stated, but it is necessarily implied, that Jephthah, of Gilead, a man of distinguished military genius and reputation, was nominated by the voice of the assembly. But this able captain had been some years before driven out from his native city. It was necessary to soothe his irritated spirit. To this end the elders went in person to seek him, laid before him the urgent necessities of the state, softened his anger by promises of preferment, and brought him to Mizpeh. Here, manifestly, they made a formal presentation of him to the people, for it is added, "The people made him head and captain over them." That is, they completed the election by giving him their suffrages, recognizing him as their leader, and installing him in his office. Here, then, we have (1) the free discussion of the people in popular assembly concerning the selection of a leader, (2) the nomination of Jephthah by the meeting to be chief, (3) the elders' presentation of him to the people for their suffrages, and (4) his inauguration as prince and leader of Israel. It is to the analysis of such incidental relations as this scattered here and there through the history that, in default of a more exact account of the primitive order of things, we are compelled to resort, in our study of the Hebrew constitution, for much of the information which it would be gratifying to find in a more detailed and systematic form.
The magistrates, then, in every tribe were a prince of the tribe, chiefs of families or clans, genealogists, and judges. "Each of these classes of magistrates had its own peculiar duties. The judges administered justice. The genealogists kept the genealogical tables, in which they occasionally noted the most remarkable occurrences of their times. The historical notices contained in the first book of Chronicles, and which are not found in the books of Moses, were probably derived from these tables.39 The heads of families, with the prince of the tribe, had charge of the general concerns of each tribe, and to them the judges and genealogists were in some degree subordinate. In Palestine these magistrates were distributed into the several cities, and those who resided in the same city composed the legislative assembly of that city and the surrounding district. When the magistrates of all the cities belonging to any one tribe were collected, they formed the supreme court, or legislative assembly, of the tribe. In like manner, the magistrates in several different tribes might assemble in one body, and legislate conjointly for all those tribes which they represented. When the magistrates of all the tribes met together, they formed the general legislature of the whole nation. Though there were no pecuniary emolument attached to these offices, they conferred great dignity and authority upon those who held them.
Such is a brief view of the magistracies instituted or confirmed by the Mosaic constitution.
NOTES:
1 Louis Philippe. 2 I say "apparent chasms" because what are shames to us were not so to the Israelites, being supplied by a then well known law of usage, a "lex non scripta" corresponding to the common law among us. 3 Genesis 21:22-23. 4 Genesis 14:24, 34:6-19. 5 Genesis 14:13-16. 6 Genesis 8:20, 22:13; Job 1:5. 7 Genesis 49:3-4, 1 Chronicles 5:1. 8 Genesis 21:14. 9 Genesis 38:24. 10 Numbers 1. 11 Judges 6:15; 1 Samuel 10:19-21, 23:23; Numbers 26:5-50. 12 Numbers 17:3, 25:15; Joshua 21:14, 23:2. 13 Exodus 3:16, 4:29. 14 Genesis 25:16. 15 Genesis 36. 16 Deuteronomy 16:18. "Judges and officers (shoterim) shalt thou make thee in all thy gates." 17 Exodus 5:6,10,14-15. 18 Numbers 26, Exodus 24:1. 19 Numbers 16:2. 20 1 Chronicles 2. 21 Exodus 5:10 seqq. 22 Deuteronomy 20:5-9. 23 Joshua 1:10. 24 Numbers 11:16. 25 Deuteronomy 29:10, 31:28; Joshua 8:3, 23:2. 26 2 Chronicles 26:11. 27 Deuteronomy 16:8. 28 2 Samuel 8:17, 20:25; 2 Kings 25:19; 1 Chronicles 24:6; 2 Chronicles 26:11; Jeremiah 52:25. 29 1 Chronicles 23:4; 2 Chronicles 19:11, 34:13. 30 Exodus 18. 31 Exodus 18:25. 32 Deuteronomy 16:18. 33 1 Chronicles 23:4, 26:29-32; 2 Chronicles 19:8-11. 34 Deuteronomy 16:18. 35 Joshua 23:2, 24:1. 36 Deuteronomy 1:13. 37 Judges 11:11. 38 Judges 10:17-18, 11:1-11. 39 1 Chronicles 4:21-23,39-45, 5:10,19-22, 7:20-24.
