Besides that original and fundamental law, which we have just been examining, a special capitulation was sworn to by the kings of Israel. The compact between Saul and the Hebrew people, made when he was chosen to the royal dignity, was drawn up by Samuel. That writing, in which doubtless were specified the rights of the king, was carefully deposited in the sanctuary.1 Of its contents, however, the Bible does not inform us. Still, there can be no doubt that the limitations of the royal power, fixed by it, were numerous and important. This is the more probable, as we find several of the kings of Israel, whose sway was much less limited than that of Saul, yet subject to very great restrictions.
When the eleven tribes submitted to David, we again find express mention made of a compact between him and the people, called a league, or covenant,2 yet, as in the former case, we are ignorant of its specific provisions. There is probable ground for the conjecture that it gave to the king the right of naming for his successor whichever of his sons he might think most capable of filling the throne beneficially to the nation; for this right David not only exercised, but all Israel conceded it to him, insomuch that Bathsheba, instructed by Nathan, said to him, "The eyes of all Israel are upon thee, that thou shouldest tell them who should sit on the throne of my lord the king after him."3 And we find that bare word of the king, in the last extremity of old age, was sufficient to place Solomon on the throne, in opposition to the wishes of the eldest brother, the general of the army, and the high priest, and to prevent the coronation of Adonijah, even although the ceremony had been commenced.4 This right of setting aside the firstborn by the arbitrary will of the king is not usual in hereditary monarchies, and therefore it is probable that it was conferred upon David by the terms of the capitulation.
The ten tribes proposed to Rehoboam some new stipulations, with view to abridge the royal prerogative, as exercised by Solomon. This was, in fact, a new capitulation, offered to the young monarch by a people yet in possession of their liberty. The king despotically refused their terms. Thereupon the ten tribes refused their allegiance to him and chose a king for themselves, who, no doubt, acceded to the wishes the people, and promised to abide by the stipulations required.5
When Joash was anointed king, mention is again made of a covenant between him and the people.6 But here, again, the history gives us no certain information concerning its contents. Yet there is no doubt that the design of the people, in imposing this capitulation upon their king, is to bring the royal prerogative, stretched beyond all bounds in the preceding reigns, within something like the original limits affixed to it the law of Moses.
Upon the whole, it is quite clear that the king of Israel was not an unlimited monarch, as the defenders of the divine right of kings, and the passive obedience of subjects, have been accustomed to represent him. How could he be so, when every tribe was under its own chief, and its own government and common weal, and even exercised the right of war? Saul, the first of the kings, appears to have had very little power. In the beginning of his reign (if his reign commenced at his at election, according to the common opinion, which, however, I doubt, for reasons previously assigned), he still pursued the business of husbandry, apparently laboring with his own hands.7 Afterwards, his army, even in the field, shared with him many of the rights of the supreme power.8 In the reign of David, such was the power of this army that he found it prudent to allow two murders, perpetrated by its general, Joab, to go unpunished, though he did so with extreme reluctance. In this, we may perhaps think that we perceive the marks of a military government, where the army is omnipotent, and while it renders the king independent of the people, still keeps him in subjection to itself. But this was by no means the case. For, in the first place, the army was the people; and both Harrington and Lowman are of the opinion that its officers were, to a great extent at least, the deputies who composed the general diets of Israel. But secondly, the military was so in subjection to the civil power, the king and the army were so limited by the liberty of the people, that the king appears not given to have had the right to demand of the cities of Israel the opening of their gates to his troops. The story, contained in 2 Samuel 20:1-20, seems to warrant this conclusion. Sheba, a rebel, had thrown himself into the city of Abel. Joab besieged it by David's orders. The citizens declared that they had no share in the rebellion. They did not, however, on that account, open their gates to Joab; but they sent him the rebel's head, and he quietly retired with his troops. Even Solomon, who carried the royal prerogative to a great height, and ruled quite after the manner of a despot, built cities of his own for his cavalry and his chariots, not venturing to quarter them on the people. In the latter times, from the reign of Hezekiah, we find the kings still more circumscribed in their power, by their privy council.
But notwithstanding the limitations of the royal prerogative, imposed by the law of Moses and the jealousy of the people, there was yet, as Samuel had forewarned his countrymen there would be, a strong tendency to despotism, in the government of the Israelitish kings. Their will often became law, even in matters of the highest importance. How tyrannically did Saul act towards David, and those eighty priests, whom he caused to be put to death, without the shadow of a trial or a crime!9 In the condemnations and pardons pronounced by David, we also perceive the decisions of despotic authority. Solomon went still greater lengths in this respect, even to the deciding on life and death by his bare will and word.10
The notion that the king in person should be the supreme judge, a doctrine peculiarly Asiatic, tended strongly to promote the despotism of the Israelitish monarchs. Of the king, therefore, as chief judge, it will be necessary to speak somewhat in detail. It is one of the first ideas of the orientals respecting their king, and what they naturally expect of him, that he should himself administer justice. Hence we are not surprised to find it related by Herodotus that the Medes once obtained a king from the following circumstance. A man who had great reputation for wisdom and integrity, and to whom almost all were wont to resort as an arbiter in cases of dispute, refused at last, from the neglect of his domestic concerns occasioned by it, to decide upon their quarrels, or to listen to their applications for that purpose; and thus he forced them to choose him for their king. The more ancient nations are, and the nearer to their origin, the more prevalent do we find this idea of a king. Indeed, while nations are yet in their infancy, and the number of the people small, it is easier to act upon this doctrine. The king of a thousand families may do what to the king of a million would be impossible.
In a great nation, the king cannot, in his own person, exercise the office of judge, without materially injuring the general interests of the citizens. He cannot have time to inform himself sufficiently of such a multiplicity of lawsuits as he must be called upon to decide. Hence, either many a litigant will not obtain a hearing at all, or causes in general will not be sufficiently investigated, and arbitrary and unrighteous decisions will follow. The mischief is still greater when the king is very gracious and gives free access to all his subjects. In that case, he is apt to be overwhelmed with trifles, and villainy takes advantage of his goodness to effect the ruin of the innocent and the simple. On the other hand, if his subjects have not free access to him, another evil arises, of no less magnitude, for then his ministers may be guilty of the grossest injustice and oppression, and yet the sovereign know nothing about it. In Asia, it is more practicable for the king to be judge in his own person than in Europe, because there, justice is in general very summary, and independent of settled forms. Still, this does not make it less liable to abuse, nor the actual abuse less mischievous in its consequences.
If the first kings of Israel assumed the office of judge, the fault lay in the manners of the East. Moses is not responsible for it. He did indeed ordain that the king should be a daily student of his law, but not that he should discharge the office of a universal judge. It is, undoubtedly, highly useful to a king to be acquainted with civil law, that he may keep his eye on his subordinates, and know whether they decide conformably to it. In this view, it would appear, Moses desired that the king should not be ignorant of jurisprudence, but he did not mean to constitute him the daily judge of his people. Let the following circumstances be considered. Moses himself found, by experience, that it was beyond his power to determine all the disputes among the people, and, therefore, he appointed other judges of various grades; yet, in matters which could not be decided by written law, known usage, or manifest equity, he established an appeal to himself, that, on such occasions, he might consult God, and enact new laws by his direction.11 Could he, then, have thought of imposing on the kings a burden, which he was himself unable to bear? The king was not a prophet, neither did he, like Moses, enjoy the privilege of immediate intercourse with God. Consequently he could not, by a direct consultation with the unerring one, pronounce an infallible judgment. The high priest, according to the constitution of Moses, was the supreme jurist. Certainly, the legislator, who devoted one whole tribe to the study of jurisprudence, and constituted its head the supreme legal authority, could never have intended that the king, occupied as he must be with the cares of government and with the conduct of wars, should in addition be overwhelmed with the investigation of lawsuits, which could not, as a consequence, fail to be decided too much in the summary style of military procedure.
All this was, undoubtedly, in the plan and intention of Moses. Yet, on its actual institution, and as matter of fact, the Israelitish monarchy was not, in this respect, thus wisely regulated. Without inquiry, without trial, without the intervention of any impartial tribunal, Saul, condemned to death eighty innocent priests, and, among them, the high priest himself, together with their wives and children.12 David was far from being a tyrant; yet, on some occasions, he had recourse to judicial procedure equally summary, and without allowing other judges to interfere.13 Even his acts of grace took place without those preliminary and circumstantial inquiries, which, in governments not despotic, are deemed necessary to render them valid, and to prevent artifice and fraud from abusing the royal clemency, to the scandal of justice and the prejudice of the country. O this, a memorable instance is afforded in the pardon of the supposed son of the widow of Tekoah.14 Had the king instituted the least inquiry into the facts of the case, he could not have been inveigled into a condemnation of himself.
In the time of this king, the defect, which had thus attended the administration of justice, broke out into a formidable evil. As long as David was king of Judah alone, it was not beyond his power, in some measure at least, to execute the office of judge. But when he became king of all Israel, and his known humanity and love of justice probably induced too many of his subjects, all of whom had free access to his presence, to bring their causes immediately before him, he found himself overpowered with business, and the course of law became tedious, to a degree till then unknown in the East. The complaint does not appear to have been that unjust decisions were rendered, but that, for want of time to hear them, even clear cases could not be decided. It is probable that the course of law was still rapid, in comparison with what it is with us; but Asia is so much accustomed to summary justice, that the least delay there seems a great grievance. It was not imputed to negligence in David that he did not do more than one man could do, and the tears with which Jerusalem, where he was best known, accompanied him in his flight from Absalom impress us with a favorable idea of his previous government. Absalom, however, availed himself of the opportunity which the tediousness of justice presented him, to seduce the affections of the people from his father. He placed himself at the entrance of the palace and questioned the complainants, who came from the provinces to the capital, concerning their suits. Having heard their statements, he told every one that his case was clear, and that it was greatly to be regretted that the king, oppressed with business, would appoint no one to listen to complaints. At the same time, he expressed a wish that the king would commit the task to him, in which case every man might look for speedy justice.15 By this artifice, for which a departure from the true intent of the Mosaic constitution furnished the occasion, he excited a general rebellion, which was attended with much bloodshed. Without any battle, the universal discontent of the tribes drove David from the throne, nor did he recover it till the blood of many citizens was spilt. It is not mentioned in the history, what measures the king took after his restoration to correct those defects in judicial procedure, which had almost cost him his crown. We know, however, that, in the latter part of his reign, he appointed several thousands of Levites as judges.16 With these he probably filled some of the higher tribunals, which administered justice in the king's name. The Levites in the provinces are expressly said to have had charge of all matters pertaining to God and the king.17 Of course, they must have had power to administer justice in the king's name.
Notwithstanding this, however, the king seems to have reserved the right of pronouncing arbitrary sentence, even in cases where life was concerned. The innocent blood, which Manasseh and Jehoiakim are said to have shed,18 renders this more than probable. It is true that blood may be unjustly shed, with all the forms of law, as in the case of Naboth.19 But such instances are rare. If a tyrant shed much innocent blood, it affords ground of presumption that he has the power of pronouncing on life and death in himself. At least European kings, even the most absolute of them, are prohibited from shedding much innocent blood, except, indeed, in the case of the hundreds of thousands whom they sacrifice in unjust wars.
The mention of war naturally suggests the inquiry, how far the power of the Israelitish sovereigns extended in military matters. On this point, the sacred book leaves us very much in the dark. Whether the king could, of himself alone, and without consulting the states-general, proclaim war, and conclude peace, is a point which must be reckoned among the chasms in our knowledge of Hebrew law. Here it would seem the jus publicum of the Israelites was itself defective, because, on the first choice of a king, they had no ancient usage to guide them, and Moses, who did not himself establish a monarchy, but only permitted its future establishment, had said nothing on this point, but left all to the determination of the Israelites. It is certain that Saul made his first war without consulting the people.20 The case, however, was one of peculiar urgency, so much so, that he may almost be said to have been forced into hostilities, in defense of the threatened liberties of the Gileadites.21 From this case, therefore, nothing positive can be inferred in regard to the general right of the Hebrew sovereigns concerning war.
The royal prerogative extended to ecclesiastical affairs. Indeed, the rights of the kings in reference to matters of this nature were so great as to excite our wonder, especially when we consider that the priests and Levites, as a sort of nobility, were intended to balance the power of the kings. They could condemn even the high priest himself to death. Not only did Saul,22 in his rage and madness, do this; but Solomon23 speaks as if he could have done it, and, out of pure clemency, was satisfied with deposing him. The kings exercised the right of reforming abuses in religion, and gave attention to the management of public worship as the most efficacious means of promoting religion and morality, and so of securing the obedience of the people to the supreme, invisible, divine Sovereign of Israel. Of this exercise of the royal prerogative, we have many examples, of which none are more memorable than those of David and Hezekiah. It was altogether suitable to the Hebrew constitution, in which the worship of one only God was the fundamental principle. Under that constitution, false religion was treason to the state, and it was proper that the kings should have the power of exterminating so dangerous an enemy.
Among the prerogatives of the Hebrew sovereigns must also be placed the right of pardon. That this power should exist somewhere in the state is highly expedient and even necessary. A civil law without all possibility of dispensation would be subject to very great inconveniences, and would be the occasion of sometimes inflicting very grievous wrong. Without a power of sometimes remitting punishments, innocence might suffer by the very law, which was made for its protection. That the right of pardon was exercised by the Israelitish kings is beyond a doubt. Nor has the exercise of it always the effect of mere partiality, but of principle and a consideration of circumstances. David not only pardoned his son Absalom, but, in a supposed case, which was laid before him, he granted a murderer his life, who was represented to have killed his brother, because the mother herself interceded in his behalf, and his father's race would have been extinct, had he suffered the penalty of the law.24
I now pass to a consideration of the royal revenues. Moses left no ordinance concerning them. With regard to what later laws and usages introduced on this head, the following particulars may be gleaned from the books of the Old Testament. The several branches of the king's revenue were presents, tithes, royal demesnes, bond service, the right of pasturage in the Arabian deserts, the spoils of vanquished enemies, the tribute of conquered nations, and, in the end, the profits of a lucrative foreign commerce.
1. Presents. Long before the time of the kings, and even before the age of Moses, there sprung up in the east a custom, often mentioned in the Persian history, and noticed by Asiatic travelers, that whoever paid a visit to a person of higher rank carried with him a suitable present. Joseph, as prime minister of Egypt, received such a present from his brethren.25 Saul did not presume to wait on Samuel, the judge, without a present.26 This was, therefore, the most ancient source of a king's revenue, prior to all tributes and demesnes. That Saul actually enjoyed a revenue of this kind is certain.27 Whether the tax continued to be paid to his successors does not appear. There is no trace of it after the reign of Saul. It is not improbable that David abolished so unseemly an impost, and admitted every petitioner into his presence without subjecting him to any expense.
2. Tithes. In 1 Samuel 8:15-17, mention is made of the tenth of the produce of the fields, the vineyards, and the flocks, as the right of the future king. This, on his actual appointment, was the third tenth which every Israelite had to pay. The first was given to the Levites;28 the second was appropriated to the sacrifice-feasts, to which were invited priests, Levites, friends, orphans, and strangers.29 None but a very fruitful country could have borne the burden of an impost to the extent of three tenths of its produce.
3. Royal demesnes. Samuel mentions a demesne, to which the king would have a right; for, says he, "He will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants,"30 i.e., in lieu of salaries. This seems inconsistent with the Mosaic law, which divided the whole of Palestine among the Israelites and prohibited the alienation of their land. Nevertheless, it is certain that the king had a demesne.31 It is likely, that at first the kings took possession only of the spots, which had not been previously appropriated and improved, of which there might be found a considerable number, particularly beyond Jordan, and about the rills in the Arabian deserts. Still, that will not sufficiently explain the passage, cited a little above; for it is there said, the king would take the best parts of every sort of landed property.
We must, therefore, seek some other mode of providing him with demesnes. It is certain that the kings exercised the right of bestowing the inheritance of state criminals upon other persons.32 It is not improbable that they availed themselves of the same right, to increase the royal demesnes by confiscations. Indeed, we have an instance of this, in the case of Nabal, who was stoned on a false charge of treason, and his estate annexed to the king's demesnes.33 This mode of increasing their lands must have formed a strong temptation to wicked kings to put innocent persons to death for pretended crimes, in order to seize and appropriate their property. Need we wonder, that, in the Hebrew history, we find so frequent mention of the shedding of innocent blood?
All this is confirmed, and rendered certain, by what we find in Ezekiel. That prophet was favored with a vision of the future reformation of the Israelitish church and state.34 In it he tells us that the prince will then have his own portion, which he must neither alienate nor enlarge. It is very distinctly enjoined upon the king not to take the people's inheritance away from them by oppression, and not to thrust them out of their possessions. It is further enjoined upon him not to give lands to his family out of the people's portions, but out of his own. This clearly indicates the practices, and, I may add, the abuses, of preceding times.
The olive and sycamore grounds, in that part of the territory of Judah which lay nearest the sea and was called the lowlands, belonged to the king's demesnes. It is distinctly stated that David placed one officer over the trees in that district, and another over the oil stores.35
That the kings assigned a part of the royal demesnes to their servants, in lieu of salary, appears unquestionable.36 At a time when the sovereign could be possessed of but little money, this was the natural way of maintaining and rewarding his servants.
4. Bond service. For the cultivation of their lands, the Israelitish kings, governing a country where slavery was permitted, would naturally require servile labor. Accordingly, we find bond service mentioned by Samuel among the royal rights, established by usage among the neighboring kingdoms, and which would be claimed and exercised by the Hebrew sovereigns, whenever monarchy should be instituted.37 In process of time, these services seem to have been increased and altered, so that they became very burdensome and very distasteful to the Israelites.38 It was probably this which gave occasion, first to the complaints, and then to the rebellion, in the reign of Rehoboam.
5. The right of pasturage in the Arabian deserts. This right belonged to the king, in common with his subjects. We find David taking advantage of this privilege, and keeping large herds of cattle, sheep, goats, asses, and camels, partly in Sharon and partly in Arabia, the greater part of them, no doubt, in the latter place.39 Among the officers who had charge of them, two Arabians are mentioned, Obil the Ishmaelite, superintendent of the camels, and Jaziz the Hagarite, superintendent of the sheep.
6. The spoils of vanquished enemies partly flowed into the royal treasury.40
7. Among the royal revenues must be reckoned the tribute paid by conquered nations. These are often mentioned under the name of gifts.41
8. Commerce. Solomon discovered a new source of royal revenue, which must have been very productive. He engaged in an extensive and lucrative foreign commerce, trading chiefly in gold, silver, precious stones, spices, linen, and horses.42
NOTES:
1 I Samuel 10:25. 2 2 Samuel 5:3. 3 1 Kings 1:20. 4 1 Kings 1:25-27. 5 1 Kings 12:1-20. 6 2 Kings 6:17. 7 1 Samuel 11:5. 8 1 Samuel 14:44-45. 9 1 Samuel 22:17-18. 10 1 Kings 2:25. 11 Exodus 18, Numbers 15:32-36. 12 1 Samuel 21:11-19. 13 2 Samuel 1:5-16, 4:9-12, 14:4-11; 1 Kings 2:5-9. 14 2 Samuel 14:4-11. 15 2 Samuel 15:2-6. 16 1 Chronicles 23:4, 26:29-32. 17 1 Chronicles 26:30,32. 18 2 Kings 21:16, 24:4. 19 1 Kings 21:1-14. 20 1 Samuel 11:7. 21 1 Samuel 11:2. 22 1 Samuel 22:17-18. 23 1 Kings 2:26-27. 24 2 Samuel 14:4-21. 25 Genesis 43:11-25. 26 1 Samuel 9:7. 27 1 Samuel 10:27, 16:20. 28 Numbers 18:21-32, Leviticus 27:30-33. 29 Deuteronomy 12:17-19, 14:22-29, 26:12-15. 30 1 Samuel 8:14. 31 Ecclesiastes 2:4-6, 1 Chronicles 27:26-31. 32 2 Samuel 16:4. 33 1 Kings 21:15-16. 34 Ezekiel 45:7-8, 47:16-18. 35 1 Chronicles 27:28. 36 1 Samuel 8:14, 22:7. 37 1 Samuel 8:12,16. 38 1 Kings 5:17-18. 39 1 Chronicles 27:29-31. 40 2 Samuel 3:22, 8:11-12. 41 1 Kings 4:21, Psalm 72:10, 2 Samuel 8:6. 42 1 Kings 10.
