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The
Covenant Code as
Law by Southwest University
Press 1998 CONTENTS The Kent
Hypothesis Biblical and Talmudic Development The Horwitz Spirit FIRST
DECALOGUE Male
Slaves Female
Slaves SECOND
DECALOGUE Capital
Offences Minor
Offences THIRD
DECALOGUE Intentional
Torts FOURTH
DECALOGUE Unintentional
Torts Bailment Monroe Smith's Elements Current Wyoming Law FIRST
DECALOGUE Slaves Peonage SECOND
DECALOGUE Capital
Offences Minor
Offences THIRD
DECALOGUE Intentional
Torts Slaves Animals Conversion FOURTH
DECALOGUE Unintentional
Torts Bailment Current Hungarian Law FIRST DECALOGUE Slaves SECOND
DECALOGUE Homicide Kidnapping Battery Abortion THIRD
DECALOGUE FOURTH DECALOGUEBailment Conclusions Sources |
PREFACE The Kent Hypothesis Charles F. Kent
asserts two theories in Israel's Laws and Legal Precedents: "Nowhere in all
legal literature can the genesis and growth of primitive law be traced so
clearly as in Israel's codes thus restored.
They also represent the most important corner-stones of our modern
English laws and institutions and therefore challenge and richly reward the
study of all legal and historical students."[1] Kent's hypothesis is
that Israeli laws are "the most important corner-stones of our modern
English laws and institutions". His method is to trace the growth of
Israel's codes from their genesis as primitive law. Progressive revelation
is critical in the growth of Israeli law.[2]
Each of the Jewish codes is generally consistent with its predecessor, but
each applies the spirit of the earlier code to the new environment. Laws
which originally applied to desert wanderers are enlarged to apply to
agricultural communities, then to monarchies, then to exile, and so forth.
The letter of the law changed within the spirit of the law. The first of five
steps in the growth of Israel's codes is their Babylonian background.[3] Kent attributes this influence to
Babylon's nexus as the commercial center for the area around the Arabian
Desert,[4]
its influence over Canaan[5]
- which the Jews never quite finished conquering,[6]
and the effect of 200 years of Babylonian and Assyrian occupation.[7] The Code of Hammurabi may have served as a
model for the early Israeli codes.[8] Kent calls the second
step "Primitive Hebrew Codes".[9]
He compares the earliest, Judean, code of Exodus 34:14-26 with the later,
Ephraimite, code of Exodus 20:23-23:19.[10] He believes that the Ephraimite code was
later because it was more detailed, and because it dealt with matters - such
as vineyards - which assume that the population was settled.[11] This Ephraimite Code was reduced to
writing in King Solomon's time.[12] The subject of these codes was primarily
administration; they pertained to specific acts, and provided specific
remedies.[13] The Primitive Codes
were written in a pattern of pentads, in which five verses are devoted to
each subject.[14] The pentads are then paired together into
decalogues.[15] The first
decalogue, for example, pertains to the rights of slaves, and is divided into
Exodus 21:2-6 regarding males, and Exodus 21:7-11 regarding females.[16] The Deuteronomic Code of King Josiah and
Hilkiah the High Priest had the benefit of both the early prophets and the
first writing prophets.[17] The spirit of this Code, Kent's third
step, was therefore more prophetic in nature, and focused on the deeds of the
individual rather than on administration or ceremony. It was a guide to the
people rather than to the judges or priests.[18] The Holiness Code, Kent's fourth step, is
found in Ezekiel 40-48, and reflects the effects of the Exile.[19] It emphasizes the holiness of Jehovah
above all else.[20] Jews are called upon to comply with God's
commands because of His holiness. No other reason is required. As a blend of
the prophetic and the priestly spirits, it is a successor to the Deuteronomic
Code and a precursor to the Priestly Code[21]
All of the moral commands are directed at the individual, but the ceremonial
functions are performed by clearly delineated groups of priests and Levities.[22]
The final, Priestly
Code, which was written by Ezra and Zerubbabel, was directed at the
conduct of priests and Levities. Kent devoted the
remainder of his study to the application of individual laws among the five
Codes. The Conduct of Inquiry: This study applies
Kent's method specifically to the Covenant Code.[23]
This was the Code of Laws that was in force when David was King of Israel. Ø
The
first section of the study examines the Biblical and Talmudic development of each
pentad. What did the Covenant Code mean to the authors and implementers? Ø
The
second section details how these same provisions apply to Wyoming in 1994 and
Hungary in 1996. What does the Covenant Code mean to us? The approach tests Dr.
Kent's hypothesis of significance by applying his method of historicity. As in Kent's Israel's
Laws and Legal Precedents, each pentad is treated as a chapter of the
book. The chapter begins with a recital of the verses as found in the Revised
Standard Edition. In the first section,
on "The Biblical and Talmudic Development", they are followed by a
commentary about what they meant to the Biblical and Talmudic interpreters.[24] In the second section,
on "Current Applications", the verses are followed by a current
legal brief on each verse. The current law is compared to the Biblical and
Talmudic law. The "Conclusion" digests the
substance of the changes which have taken place in the law since King David's
time. Essentially, the letter of the
law has changed, but the spirit of the law has remained the same. |
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Biblical
and Talmudic Development INTRODUCTION The Horwitz Spirit George Horwitz'
purpose in writing The Spirit of Jewish Law is "to present in one
volume, the main principles of Jewish Law as developed from its beginnings,
in the Bible, through Talmud and the later works of the great masters."5
He believes that; "Jewish law
exhibits a process of continuous refinement toward more exact justice and greater
humanity. Harsh provisions of Biblical legislation, the letter of the
Scripture, were modified or abrogated by the spirit of humanity which
constitutes the essence of the Torah and of the Talmud. ... the Talmud and
Rabbinical developments generally, represented not a decline from the sublime
teachings of the Bible and the Prophets, but rather a carrying onward and
forward of those very teachings."6 From the outset, then,
Horwitz is absolutely consistent with Kent's basic idea. The genesis and
growth of Jewish law can be clearly traced in Israel's codes, the development
of Jewish law has been reflective of the institutions, and it has been a
movement from precise legalistic rules toward ethics and morals. Each
development has been more abstract than its predecessor.7 Only Jewish law has
survived into modern society. It has come both directly - and uninterrupted -
through Jewish tradition, and also indirectly through Christian culture. The Church States of the Middle Ages drew
heavily on both the language of the Old Testament and the administrative
power of Court Jews.8 The Puritans openly declared that their
law would be based on the Law of Moses as found in Scripture.9 Like all law, Jewish
Law didn't develop into a code until quite late. The Mosaic Code came only after "Israel was already long
established as a separate people, with an old and distinctive pattern of folk
ways, customs, and institutions."10 Rashi and Rambam11 wrote their systematic studies after
the Torah had been supplemented with centuries of responsa and rabbinical
teachings.12 The main text of
Horwitz' book is to emphasize how the spirit of the law has always prevailed
over the letter. This theme in legal development illustrates the social
evolution from the rude and savage to more refined and humane.13 The first example of this was the
change from "an eye for an eye" toward monetary compensation. Even
conservative, Priestly, judges interpreted this mandate as "the value of
an eye for an eye". Deep in the
hearts of both the Priests and the Rabbis "was the conviction that `the
Lord God merciful and gracious' neither desired nor approved such bloody
revenge as to inflict the same injury on the defendant as he had done to the
plaintiff.14 Horwitz restates this
theme of spirit of the law over letter of the law, and denies that Jewish law
was just a corpus juris of statutes. It was "a revelation of God's ideal
for men's conduct and character."15 The purpose of the law has always been the
codification of spirit for practical purposes and for the guidance of
spiritual minors.16 It was the task
of the Doctors of the Law "not solely to give a juristic definition of
the statutes, with application to the various cases that were expressly or by
implication covered by them, but to widen the scope of the law in accordance
with its spirit and principles."17
The law given to Moses
was both written and oral. The oral Tradition of the Elders was used to
explain the Pentateuch.18 Horwitz compares
this to the constitution of the United Kingdom little of which is actually
written down.19 The larger example,
which reaches the United States, is the entire concept of Common Law. Nine
volumes of Wyoming Statutes are supported by 817 volumes of case decisions. The Canons of Ethics and Bar Disciplinary
Code are made up of five pages. The idea of ethical conduct is almost
impossible to nail down.20 The struggle between the Rabbis and the
Pharisees over reducing the oral law to writing lasted almost 700 years.21 This combination of written law and
tradition is reflective of the interpenetration of law with morality. Jewish
Law has continually been infused with ethical principles.22 It is simply another illustration of
the force of the spirit over the letter of the law. As the oral tradition
was reduced to writing, a struggle developed over the relative importance of
the Torah and the Talmud.23 Rambam addressed this problem in the
Introduction to his Commentary on the Mishnah. He identified Biblical Laws as "(1)
laws expressly stated in the Torah; (2) laws derived from Scripture by
interpretation; and (3) certain laws not derived from the Torah but deemed
`Halakot to Moses from Sinai'. All other rules may be considered Rabbinical
laws."24 "The Halakot of
Moses from Sinai" was "the Tradition of the Elders". Horwitz deals at
length with the development of interpretations and Rabbinical laws. At least part of his purpose is to make an
offer of proof that the spirit of the law always prevailed over the letter of
the law, and that the development of Jewish law was a process of continuous
refinement toward more exact justice and greater humanity. Whether the Rabbinical law adhered to this
process of continuous refinement is beyond the scope of this study. This study first examines what the
Covenant Code meant to the authors and implementers. It then addresses
whether the laws of the Covenant Code apply to Wyoming and Hungary in 1995. FIRST
DECALOGUE The
Rights of Slaves FIRST PENTAD: Males 2When you buy a Hebrew
slave, he shall serve six years, and in the seventh he shall go out free, for
nothing. 3If he comes in single, he shall go out single; if he
comes in married, then his wife shall go out with him. 4If his
master gives him a wife and she bears him sons or daughters, the wife and her
children shall be her master's and he shall go out alone. 5But if
the slave plainly says, `I love my master, my wife, and my children; I will
not go free,' 6then his master shall bring him to God, and he
shall bring him to the door or the doorpost; and his master shall bore his
ear through with an awl; and he shall serve him for life.1 SECOND PENTAD:
Females 7When a man sells his
daughter as a slave, she shall not go out as the male slaves do. 8If
she does not please her master, who has designated her for himself, then he
shall let her be redeemed; he shall have no right to sell her to a foreign
people, since he has dealt faithlessly with her. 9If he designates
her for his son, he shall deal with her as with a daughter. 10If
he takes another wife to himself, he shall not diminish her food, her
clothing, or her marital rights. 11And if he does not do these
three things for her she shall go out for nothing, without payment of money.2 Commentary: Every state begins
with violence, and if it becomes secure it mellows into liberty.3
Democracy may be the result of the rise of the Middle Class.4 The institution of
slavery developed along side of the concept of property. Hunter-gatherers and
nomads had little use for slaves. The wives and children did the menial work
while the men altered between hunting and war or satiety and peace.5 The families worked for themselves,
and the organization of labor depended on force. The rise of
agriculture led to the employment of the socially weak by the socially
strong. Butchery and cannibalism decreased in war as slavery became
profitable.6 The concept of slavery was then extended
from captives of war to include defaulting debtors and obstinate criminals.7
Both Aristotle and St. Paul accepted it as natural.8 Inheritance also added
to the institutionalization of class distinctions. The increased wealth and
leisure of the upper class increased their ability to hold mastery over the
lower castes who were generally unskilled at the increasingly complex tools
and trades. The state finally arose as an indispensable instrument for the
regulation of classes, the protection of property, the waging of war and the
organization of peace.9 Egyptian workers were
mostly freemen, but partly slaves.10
The great wars brought thousands of captives. These captive slaves made large
estates, and triumphs of engineering, possible. Ramses III alone presented 113,000 slaves. The Egyptian caste
system was as brutal as anything India ever saw. Rebellions were apparently frequent,
but few were recorded.11 Slavery was highly
developed along the Tigris and Euphrates Rivers as early as Sumeria. Property
rights were already sacred.12 This followed in Babylonia where a creditor
could seize a debtor's slave or son as a hostage until the debt was paid in
full, but there was a three-year limit on such servitude.13 Slaves were recruited from captives
taken in battle, from slave raids carried out by marauding Bedouins, and from
the reproductive enthusiasm of the slaves themselves. Slaves did most of the
physical work in the towns, including nearly all of the personal service.
Female slaves were completely at the mercy of their master, and were expected
to provide him with bed as well as board. They were expected to supply him
with a copious supply of children. Slaves who were not so treated felt
neglected and dishonored. The slave, and everything he owned, belonged to his
master. He could be sold or pledged
for a debt, and he might be put to death if his master thought him less
valuable alive than dead. The slave was further subject to conscription for
the army or for the corvèe of forced labor for public works. The off set was
that the master assumed his medical bills and kept him somewhat alive during
slack employment and old age. If a slave married a free woman their children
would be free, and half of his property went to them upon his death.14
His master might set him up in business, and he could use his share of
the profits to buy his freedom. The master could also free the slaves for
exceptional, long and faithful service, but such a release was extremely
rare. The high birth rate among the slaves made them more numerous than the
free. A great slave class moved like a swelling subterranean river beneath
the Babylonian state.15 The Assyrian treatment
of captives was as brutal as was natural to people who lived by conquest and
were in every sense on the border of barbarism.16
Assyrian commercial concepts were not well developed, so few captives
were converted into slaves. The bulk of their slaves came from within their
borders. The Phoenicians were
among the foremost slave traders, not through military prowess, but through
commercial enterprise.17 The force of the Eighth
Commandment made property stand next to religion and family as a basis of
Hebrew society. Slaves were part of
this property, and hundreds of thousands of them toiled as part of Solomon's
corvèe. The slaves were war captives, debtors and convicts. Men could sell
either themselves - or their children - to pay debts, and this practice
continued until after the time of Christ and Paul.18
The distinctions between Israeli slave practices and those in other
Near Eastern nations were the generous charity, and the vigorous campaign by
priest and prophet against exploitation of other Israelis. The Sabbath rest,
for example, applied to slaves as well as freemen.19 The law laid down the hope that
"Ye shall not oppress one another."20
The forgiveness of debts and the discharge of bondservants on a
seven-year basis21 proved too
idealistic for creditors, so the law proclaimed a Jubilee every fifty years.22
There is no evidence that the Year of Jubilee was ever actually
implemented. There was a clear
effort to humanize and regulate slavery in Israel beginning in the first
pentads of the Covenant Code. Even
more advanced regulations are found in Deuteronomy 15:12-18. Jeremiah 34:8-22
indicates that ownership of Hebrew slaves had become a dead letter prior to
the Exile. This perception is strengthened by the post-Exilic language of
Leviticus 25:39-41.23 Male Slaves: Horwitz' theory of the
spirit of humaneness in Jewish Law begins in the first verses of the Covenant
Code. There were two kinds of slaves in Israel; `Eved `Ivri and `Eved
Cana`ani. The Hebrew slave, `Eved `Ivri, was actually an
indentured servant. His master had to treat him as a brother.24 He should work at some craft which he
had worked at as a freeman. If there was no such craft he should be taught a
craft. He could be put to servile work as discipline for failing to do his
duty, but he could not suffer humiliating tasks of "slave labor" at
all. The master could give such a servant a Canaanite slave as a wife. The
children who were issue of such a marriage would be viewed as Canaanites, and
therefore become the perpetual property of the master and his heirs.25 If the servant was married at the time
of the court's order, his wife and children went into service with him. The
master was then charged with maintenance of the entire family, but was also
entitled to their services.26
If the servant were injured through some ones negligence, the master was to
be compensated thirty shekels.27 When the servant was released the master
was to provide him with goods from the larder which was also worth thirty
shekels.28 The court could bind
an Israeli over to another Israeli for restitution of stolen property. Such
an obligation lasted no more than six years. The servant could voluntarily
extend his servitude by declaring "I love my master ... I will not go
free." As of that declaration,
his service ran to the Jubilee or to the master's death.29 An Israeli could also
sell himself into servitude for the direst poverty, and when no other
recourse was available to him.30 This bondage should not be to a woman or
to a convert. Servitude to a gentile was discouraged, and if there was such a
sale it instantly became the duty of all Israel to redeem the Jew lest he
become "swallowed up" in heathendom.31 Whether the Israeli
was bound voluntarily or by the court, he could redeem himself by paying his
master the proportionate share of the purchase price. If, for example, the
purchase price was ninety shekels for six years, the master had to release
the servant upon payment of fifteen shekels for each remaining year.32 In the first year the total redemption
price would be ninety shekels, in the third year it would be forty five
shekels, and in the sixth year it would be fifteen shekels, and so on. In addition to
monetary redemption, the slave could be freed informally. He could be treated like a freeman. He
could be given phylacteries. He could be used as part of a quorum for public
worship. Any of these kinds of acts would indicate that the servant had been
liberated. Courts always ruled in favor of liberation if there was even a
shadow of a doubt.33 Any slave would be
freed if the master inflicted any injury on them involving the loss of any of
the "twenty four members of the body."34 Rashi's commentary on Exodus 21:26
identifies the 24 members of the body as ten fingers, ten toes, two ears, the
end of the nose, and the groin. The language was intended to reflect that
"even if only one of these" was injured the release was instant and
compensation would be made. Greater injury increased the amount of
compensation. The idea behind the use of "an eye for an eye and a tooth
for a tooth" was that the loss of an eye was a permanent injury to the
whole body, whereas the loss of a tooth was a short term injury which was
best compensated in terms of pain and suffering. Regardless of whether the injury was total and permanent, or
minor and temporary, the victim would be released and compensated. Jewish law prevented
the master from "wronging" their slave. This extended beyond physical
to verbal reproaches and mocking. Maimonides' directive was "One should
not abuse a slave by word or deed. He is subjected to service but not to
humiliation."35 The entire idea of
`Eved `Ivri was obsolete by the days of the Second Temple.36 Female Slaves: A Hebrew female could
not be sold into servitude by the court. She could only become a servant if
her father sold her during her minority. She could not be sold to gentiles,
and if she married into her master's family she instantly became free as
though she had never suffered the humiliation of slavery. She could be redeemed at any time, and it
was the charge of all Israel to do that redemption.37 Polygamy with slave
girls was acceptable, but plural marriage among Israelis was very rare. By the year 1000 CE Rabbi Gershom
legislated that both polygamy and arbitrary divorce were abandoned.38 Practice called upon the groom to sign
a pledge that he would not take another wife.39 This runs to the entire concept that a
master who has designated a slave girl for himself or for his son could not
deal faithlessly with her. The master of an `Eved `Ivri slave girl did not
have capricious power over her even as early as the Covenant Code. Summary: There are two thematic points under the laws regarding slavery. First, Israelis and Jews were not allowed to abuse their slaves as other nations so often did. Second, the treatment of Hebrew slaves, `Eved `Ivri, was intended to get these people out of servitude. The spirit of the Jubilee was that the Hebrew servants should be released, and their debts forgiven. All Israel - or all Jewry - was charged with the duty of redeeming these people. The master was charged with using them in a manner, and in a skill, that would prevent them from becoming enslaved again. When the master died, these Hebrew slaves went free. The debt died with the man. SECOND
DECALOGUE Assaults FIRST PENTAD: Capital Offences 12Whosoever strikes a
man so that he dies shall be put to death. 13But if he did not lie
in wait for him, but God let him fall into his hand, then I will appoint for
you a place to which he may flee. 14But if a man willfully attacks
another to kill him treacherously, you shall take him from my altar, that he
may die. 15Whoever strikes his
father or his mother shall be put to death. 16Whoever steals a man,
whether he sells him or is found in possession of him, shall be put to death. 17Whoever curses his
father or his mother shall be put to death.40 SECOND PENTAD: Minor Offences 18When men quarrel and
one strikes the other with a stone or with his fist and the man does not die
but keeps his bed, 19then if the man rises again and walks abroad
with his staff, he that struck him shall be clear; only he shall pay for the
loss of his time, and shall have him thoroughly healed. 20When a man strikes his
slave, male or female, with a rod and the slave dies under his hand, he shall
be punished. 21But if the slave survives a day or two, he is not
to be punished; for the slave is his money. 22When men strive
together, and hurt a woman with child, so that there is a miscarriage, and
yet no harm follows, the one who hurt her shall be fined, according as the
woman's husband shall lay upon him; and he shall pay as the judges determine.
23If any harm follows, then you shall give life for life, 24eye
for eye, tooth for tooth, hand for hand, foot for foot, 25burn for
burn, wound for wound, stripe for stripe.41 Commentary: The Torah's criminal code was written in order
of the severity of punishment.43
Every provision of the first pentad requires the death penalty. The judges and rabbis who were charged with
implementing the code began to back away from this severity almost
immediately. They made criminal
intent an essential element of such Offences.44
To establish criminal intent they had to account for "(1) the surrounding circumstances and
effect of the act contemplated as a physical event; (2) its anti-religious or
anti-social character; and (3) its exact punishment. As evidence of such knowledge and consequent
criminal intent the Talmud required proof of forewarning, hatra'ah.
Immediately before he committed the act the wrong-doer must have been warned
by two witnesses."45 The hatra'ah could be given by anyone,
including women and slaves who were usually incompetent witnesses. It could
even come from the victim.46 However it happened, hatra'ah had to have
been accepted by the perpetrator in order to establish criminal intent.47
Hatra'ah would only be over looked if the act itself constituted a
warning, such as bearing false witness, inciting to idolatry, or forcible
entry.48 Homicide: Any adult of sound mind was considered capable
of murder. No distinction was made between genders, nationalities, or
servitude. So also, any person could be a victim. The same rules applied.49 Proof of the homicide had to be beyond a
reasonable doubt. Any intervening circumstance would back the judges off of
the ultimate sentence. If the victim was already dying; if the victim had
prior fatal injuries; or if the weapon might not have been the fatal one the
judges backed off. If the victim survived long enough to receive compensation
in civil court the judges backed off of any criminal prosecution.50 Homicide was also broken down into categories
of justifiable, misadventure, negligent, culpable, and felonious.51 It was justifiable if it was done to prevent a
forcible crime.52 It was misadventure if it was by accident of
pure chance.53 It was negligent if it was from the lack of
due care, but without malice.54 It was culpable if it was either the result of
criminal negligence or intentional wrongful conduct.55 Accessories or abettors could be accountable
for culpable homicide.56 The culprit here
could be pursued and punished by the blood avenger, or they could be tried
and sentenced by the court.57 The culprit was not given the benefit of a
city of refuge.58 Felonious homicide required deliberate and
specific intent. There could be no mitigating circumstance. The fatal act had
to have been committed without physical aid from anyone else.59 If hatra'ah could not be proven, but
the court was satisfied of the defendant's guilt, he would be imprisoned
under conditions which were likely to shorten his life. These conditions were
known as "the narrow cell".60 After the Diaspora, the definition of
"murder" was expanded to mean making your brother's blood boil
because of the bitterness of your acts.
The belief was that if you kill one soul with anger you kill the whole
world.61 Kidnapping: The Eighth Commandment, against stealing,
applied to this crime in particular. The crime could be perpetrated by
anyone; slave or free, man or woman, Jew or gentile. The victim could only be
a free person.62 A stolen
slave was not kidnapped, but stolen property. A person who stole a slave was
liable to the owner for damages, but was not punished criminally.63 The rabbis found four elements in the
crime. Carrying off, detention,
enslavement, and selling had to occur in that order.64 Ø
The
first element meant removing them from their home. Confinement inside a
person's own residence did not qualify.65
Ø
The
detention could only be in the offender's residence. Abduction to any other
place would not qualify as kidnaping.66 Ø
The
victim must be aware that they had been enslaved, and they must be compelled
to submit to some service involuntarily.67 Ø
Finally,
the sale must meet all of the elements of a transaction. There had to be an
offer, an acceptance, consideration must change hands, and both the seller
and the buyer had to be able to enter into the transaction.68 If each of the elements did not occur, and in
the order specified, then the crime had not been committed. The elements also
had to be verified by two witnesses.69 It is obvious that the rabbis considered death
too harsh a penalty for kidnapping.
They were still bound by the language of the scripture. They solved
the conflict by making conviction almost impossible. There is no record of
anyone having been convicted of kidnapping in court.70 Assault of Parents: Cursing a parent was a capital offence among
Hebrews and Israelis. In extreme cases unruly children could be executed.71
Any demeaning act could suffice as a "wronging". Assault and Battery: The concept of lex talionis - an eye for an eye
- was partly reflective of the level of commerce in Israel. Property was
almost entirely land. The bulk of the population devoted itself to tending
vines and trees or rearing cattle and sheep. There was little industry beyond
the potter and the smith until Solomon's reign. Gold and silver were weighed
as the medium of exchange for each transaction. Bankers appeared to finance
commerce and enterprise as trade began to flourish. Both the merchants and
the bankers plied their trade in the court of the Temple in keeping with the
custom in the Near East even to this day. The art of financing eventually
became institutionalized in the scripture as "thou shalt lend to many
nations, but thou shalt not borrow."72
Coinage did not appear in Israel until almost the time of the Babylonian
captivity.73 There is little to no evidence that "an
eye for an eye" was ever taken literally even in the desert. But as
commerce became sophisticated, this cap on the extent of reprisals became the
value of an eye for an eye.74 The judges and rabbis believed there was
some form of ransom or restitution for every form of wrong except murder.75 In order to have only "one
manner of law" compensation and restitution had to be based on money
damages.76 Even the language of
the passage, "an eye tahat an eye", meant "as payment
for" rather than "as punishment for" an eye.77 Jewish law provides five elements among the
measure of damages from assault; the injury, the pain, the cure, the loss of
earnings, and the indignity inflicted.78 Compensation for injury was measured by how
much the injury would devalue a slave. Ø
Permanent
injury could render the slave worthless, so the compensation would be the
total purchase price.79 Ø
Temporary
injury was better measured in terms of the amount of pain involved. Burns were more painful than breaks. The
rabbis' test for compensation became how much a person would pay to avoid
that much pain.80 Ø
Compensation
for cure, only extended to the day when the wound was completely healed. In this way, there was liability for
abscesses or ruptures, but any unsoundness after the healing would be due to
some other cause.81 Ø
The
measure of lost earnings was at minimum wage. It was what the lowest paid
worker earned, and for a predetermined period of time.82 Ø
Liability
for shame could only be intentional. Spitting on a victim was only
compensable if the spittle struck the victim's skin.83 The offender was required not only to
pay a predetermined sum of damages, but also to ask forgiveness from the
victim.84 The victim, in turn
must forgive.85 Slander elicited both
a penal fine and compensable damages to the victim.86 Both the allegation and the
refutation had to be supported by competent evidence which the court had a
duty to investigate thoroughly.87 As stated in the commentary on the first
Decalogue, any time a master injured a slave, the slave instantly went free.
In the Covenant Code this injury was limited to an eye or a tooth, but the
rabbis quickly extended it to include any member of the body.88 Abortion: To be a victim of any sort the nefesh adam, or
human being, had to be an ish, or man.
To be an ish the child must have been full term, and must have taken
its first breath. If it had been born premature, the child became an ish at
30 days. An ish could have a cause of action.89 Under both Torah and Talmud a fetus was a
"thigh," or a part of the mother.90 No claim could be maintained for a child
until it took its first breath.91 If an injured woman miscarried, the father
would be compensated for property loss.
Since the fetus was not a separate being, it could not be injured. THIRD
DECALOGUE Intentional
Torts FIRST PENTAD: 26When a man strikes the
eye of his slave, male or female, and destroys it, he shall let the slave go
free for the eye's sake. 27If he knocks out the tooth of his
slave, male or female, he shall let the slave go free for the tooth's sake. 28When an ox gores a man
or a woman to death, the ox shall be stoned, and its flesh shall not be
eaten; but the owner of the ox shall be clear. 29But if the ox has been accustomed to gore in the
past, and its owner has been warned but has not kept it in, and it kills a
man or a woman, the ox shall be stoned, and its owner also shall be put to
death. 30If a ransom is
laid on him, then he shall give for the redemption of his life whatever is
laid upon him. 31If it
gores a man's son or daughter, he shall be dealt with according to this same
rule. 32If the ox gores a slave, male or female, the owner shall
give to their master thirty shekels of silver, and the ox shall be stoned.1 SECOND PENTAD: 33When a man leaves a
pit open, or when a man digs a pit and does not cover it, and an ox or an ass
falls into it, 34the owner of the pit shall make it good; he shall
give money to its owners, and the dead beast shall be his. 35When one man's ox
hurts another's so that it dies, then they shall sell the live ox and divide
the price of it; and the dead beast also they shall divide. 36Or
if it is known that the ox has been accustomed to gore in the past, and its owner
has not kept it in, he shall pay ox for ox, and the dead beast shall be his. 22:1If a man steals an ox
or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and
four sheep for a sheep. He shall make restitution; if he has nothing, then he
shall be sold for his theft. 4If the stolen beast is found alive
in his possession, whether it is an ox or an ass or a sheep, he shall pay
double. 2If a thief is found breaking in and is struck so that he
dies, there shall be no blood guilt for him; 3but if the sun has
risen upon him there shall be blood guilt for him.2 Commentary: As mentioned in the previous Decalogue, the
judges and rabbis applied Numbers 35:31 to mean that there was some form of
compensation for every form of wrong except murder.5 This is a critical difference between
Jewish and English law. If the wrong
harmed either person or property the Jews believed that it was more important
for the victim to be compensated than for the wrongdoer be punished.6
Acts such as robbery, mayhem, rape, and embezzlement were private
wrongs rather than crimes under Jewish law.7 Compensation of the victim was a judgment
debt which could be collected from the wrongdoer or their estate. Additional
damages awarded to the victim were viewed as a penalty which died with the
wrongdoer.8 Injury could result either directly by the
wrongdoer, by something in his control, or by something he caused.9 There were instances of intentional
harm, but the usual cause of harm by the wrongdoer "was negligence in
guarding the thing or condition for which one was responsible."10
Only physical control entailed liability, the owner was not
responsible for indirect harm.11
The first pentad of this decalogue pertains to known acts. The ox that was
known to gore, the pit that was known to be a trap, and conversion that was
known to be theft. The second pentad pertains to acts of inadvertence, the
cow that wanders onto a neighbor's field, the fire that gets away from the
farmer, and things that disappear during a bailment. The rabbis derived four broad classes of harms
directly from the Covenant Code. They simply adapted the terms the Code used.
The harm of "ox" was the acts of an animal which were intended to
inflict harm. "Pit"
signified any obstacle which a person created on the surface of the ground,
but which did not move. "Grazing Animal" was the ordinary acts of
animals in their natural or habitual manner. "Fire" was the
dangerous things which might be carried or blown in the wind. Fire would include
tools left on the roof, gases, or fumes. This Decalogue pertains to
"ox" and "pit". Ox: If an owner used ordinary care and properly
guarded their animal they would not be liable for any damage the animal
caused. The owner should, the rabbis said, tie an animal with a halter and
leave it behind a closed door that would hold against ordinary wind.12 Heroic measures were not necessary.
If negligence was established, however, the owner became liable for all of
the consequences, including to third persons. "If the beginning was
negligence and the end was accident, the owner was still liable."13 An animal and its owner were liable for a fine
regarding acts which were not according to the species' usual nature unless the
owner had not been duly warned regarding the animal's specific conduct.14 Once the owner knew that the specific
animal was prone to a specific behavior they became liable for the actual
damages suffered by the victim.15
The fine would not exceed the value of the
animal. The victim could recover half their damages. The victim's claim
constituted a lien on the animal,16
and their lien followed the it even if it were sold. The limit on the damages
meant that the owner might have to deliver the animal to the victim as
compensation. Once delivery was made the owner was free of any additional
liability.17 The owner was "duly warned" of the
animal's behavior if it caused injury by the same act three times. Warning
also had to be given to the owner by the court.18 This entire practice fell into disuse
by the Second Century CE. If the animal killed someone or something, it
could be executed if there was clear and convincing evidence that it had
specifically intended to kill the victim.19
The owner was not liable for the injury unless they had been specifically
warned as in personal injury. Pit: The owner of any tangible object which somehow
became a public obstacle was liable for any harm it caused.20 The owner was under a duty to remove
it. The owner's liability ended, of
course, if the object was taken away by someone else without his knowledge.21 Slaves: The inhumane treatment of slaves, whether
`Eved `Ivri or `Eved Cana`ani, resulted in their immediate release. This was discussed in both the first and
second decalogues. The provisions of verses 26 and 27 are reiterated here
simply to reinforce that if the master injured the slave in any way, the
slave was freed because of the master's negligence. These provisions are found in this Decalogue
because of the order in which the Covenant Code was structured. The more severe penalties, like verse 20,
are recited earlier in the Code. Another detail which should be addressed here
is that since slaves were capable of judgment, they were liable for their own
acts of negligence. If the master had been made liable the slaves could
easily cause them great damage.22 Thieves: The act of theft was any effort by the taker
to convert something to their own use. It included any act of dominion.23 A thief had to pay the victim for the actual
loss suffered and for the "diminution in money value" caused
because of the theft. The thief had the duty to keep the stolen property safe
and to return it. If he failed to do these things he had to make double
restitution.24 The thief who stole sheep or cattle had to
make much higher restitution because that was the chief form of wealth, and
to slaughter or sell cattle was the easiest means of hiding theft.25 The thief could only be compelled to
pay these high penalties after trial and conviction upon full and proper
proof. The severe language of Exodus 22:1-2 is based
on the hatra'ah which was discussed
as part of the second Decalogue. Breaking and entering at night was forewarning
in and of itself. Daylight burglary could be a mistake, so hatra'ah applied
again. FOURTH
DECALOGUE Unintentional
Torts FIRST PENTAD: In General 5When a man causes a
field or vineyard to be grazed over, or lets his beast loose and it feeds in another
man's field, he shall make restitution from the best in his own field and in
his own vineyard. 6When fire breaks out
and catches in thorns so that the stacked grain or the standing grain or the
field is consumed, he that kindled the fire shall make full restitution. 7If a man delivers to
his neighbor money or goods to keep, and it is stolen out of the man's house,
then, if the thief is found, he shall pay double. 8If the thief is not found, the owner of the house
shall come near to God, to show whether or not he has put his hand to his
neighbor's goods. 9For every breach of
trust, whether it is for ox, for ass, for sheep, for clothing, or for any
kind of lost thing, of which one says, `This is it,' the case of both parties
shall come before God; he whom God shall condemn shall pay double to his
neighbor.1 SECOND PENTAD: Bailment 10If a man delivers to
his neighbor an ass or an ox or a sheep or any beast to keep, and it dies or
is hurt or is driven away, without any one seeing it, 11an oath by
the Lord shall be between them both to see whether he has not put his hand to
his neighbor's property; and the owner shall accept the oath, and he shall
not make restitution. 12But
if it is stolen from him, he shall make restitution to its owner. 13If it is torn by beasts, let
him bring it as evidence; he shall not make restitution for what has been
torn. 14If a man borrows
anything of his neighbor, and it is hurt or dies, the owner not being with
it, he shall make full restitution. 15If the owner was with
it, he shall not make restitution; if it was hired, it came for its hire.2 Commentary: As discussed in the commentary on the previous
decalogue, liability could result 1) by direct acts of the wrongdoer, such as
"ox" or "pit", 2) by something in their control, such as
"grazing" or 3) by something they caused, such as "fire". Ø
Liability
usually stemmed from negligence in controlling something. Although physical control, even in
bailment, entailed liability, the owner was not responsible for indirect
harm. Ø
If
someone fell into something under the owner's control, the owner was liable
for harm by property, under the concept of "pit". As also discussed, damages were intended to
compensate the victim for 1) the injury, 2) the pain, 3) the cure, 4) the
loss of earnings, and 4) the indignity inflicted. The injury measured permanent disability. Pain was compensated
by how much a person would be willing to pay to escape such pain. The cure
compensated the cost of the medical treatment to complete recovery. Loss of
earnings was measured at minimum wage. Indignity was compensated at a
predetermined amount, and by an apology from the wrongdoer. The rabbis derived four broad classes of harms
from the terms of the Covenant Code. The harms of "ox" and
"pit" were discussed in the previous Decalogue. The first pentad of this decalogue pertains to
the harms of "grazing animal", or the ordinary acts of animals in
their natural habitat and "fire", or dangerous things which might
be carried or blown in the wind. Grazing Animals: If an animal was in a place where it ought to
be and still injured someone's property, the owner was liable for the extent
to which the animal was bettered. If the animal ate a bushel of grain, the
owner owed the victim a bushel of grain "from the best of his
fields".3 This attitude of compensation only for the
amount of betterment to the animal stemmed from the belief that victims were
usually aware of such conduct by animals, and had a duty to protect
themselves.4 If the animal was not properly corralled, the
owner was liable for the actual damages suffered in trespass.5 Fire: If someone started a fire on their neighbor's
property, the trespass indicated intentional harm.6 If a fire was started on a person's own property,
ordinary care would protect the owner from liability. Such care could be
shown by having proper distance from the boundary or by having a competent
person guard the fire.7 An act caused by the wrongdoer would include standing
up and allowing a heavy object fall from his lap to injure someone.8 The measure of damage for either intentional
or ordinary negligence was full restitution for all property damage and
bodily injury. Property damage included anything which would ordinarily be
stored on that property.9 Bailment: Whenever a person is in lawful possession of
another person's property, and is bound to return it to them, there is a
bailment.10 Jewish law broke such
bailments into four groups; 1) benefit to the borrower, 2) benefit to the
lender, 3) benefit to the borrower with payment, and 4) benefit to the lender
with payment.11 The primary duty was
to restore the goods in tact. When restoration of the goods was not possible
or feasible its value had to be paid.12 The rule of law was simple: "The gratuitous
bailee swears about everything; the borrower pays in all cases; the bailee
for hire and the hirer swear as to the crippled, captured, or dead beast but
pays for what is stolen or lost."13 Every negligent borrower was liable for the
full value of the thing lost or damaged. The thoughtful borrower was not
liable if the damage was caused by "acts of God" or by "the
king's enemies". If the thing borrowed broke or died in the course of
ordinary use - which it was designed for - the borrower was excused from
liability.14 If the thing bailed was money, bankers or
money lenders could use it during the term of bailment. Other persons must
keep the money intact.15 A bailee had the right to entrust the property
to someone else, but they became liable to the bailor for any incident of
loss or damage.16 The taking of entrusted property constituted
embezzlement. "He who does not handle property entrusted to him
according to the wishes of the owner is a robber."17
This was a civil wrong rather than a crime among the Jews.18
The thief had to pay double the value. If he repented, he might only
be fined for the value plus a fifth.19
The problem which most often faced the judges
in bailment was the lack of evidence. The nature of the loss became a
swearing contest between the parties. The bailor would make an accusation and
the bailee would deny it. Nothing could be proven. To resolve this the Israelis relied on an oath to the Lord by
the bailee.20 |
|
Current Applications INTRODUCTION Monroe Smith's Elements Monroe Smith wrote "The Elements of
Law"21 as a legal
historian. He wanted to find the
sources of law, and the dimensions which measure it. Smith believed that law is imposed on
individuals by their environment.
Healthful living is imposed by the world around us. Thrift is imposed
by the physical and social environments. Social rules come from the general
sentiment of the society.22 This third group, the social will, tends to be
the basis of law.23 First manners then morals are taught
through psychological persuasion. The difference between them is the gravity
of the act.24 Law is the third
step. Law is institutionalized through the public process,
and physically enforced.25
All three tend to operate together. Illegal acts are often also ill mannered
and immoral.26 In other words,
social usage, beginning with manners and morals, provides much of the
material for the law.27 Conflict
comes when the society changes faster than law keeps up.28 "Law is in part found, in part made; that
is, it is established partly by decisions and partly by legislation."29 It is "made" when it is a
community decision. The public is somehow involved. A custom - even a
contract - develops to deal with a particular matter. One example is that the
lumber industry relies on studs and rafters in frame buildings being on 16
inch centers. Only steel shelving braces really are 12 inches long, and these
braces are not made by people in the lumber industry. Everyone knows that
this custom exists, but no one can explain the reason. Why 16 inches rather than 15? Why not some
other standard measure? This policy was made somewhere in the industry, and
has now become a custom of the trade. Law is "found" when it is formulated
by experts on morals and manners. The United States Supreme Court recently
"found" the Constitutional right of privacy.30
Until the Enlightenment, "law finders" tended to be priests.31
In Rome the priests even became specialized into interstate relations,
public law inside of Rome, and private law.32 Law which has been "made" becomes
part of the precedent which the law "finder" applies. The expert
law finder then has the power to restate the rule of law and apply it to
individual situations. This reinterpretation is how "the Roman law and
the English law ... developed from rude customs into the stately fabrics
beneath whose shelter all civilized peoples except the Chinese and the
Muhammadans are now living."33 Since the Reformation, and certainly since the
Enlightenment, finding, and applying, the law has changed from deductive
application of a known set of premises, to inductive experimentation.34 Regardless of whether the method has
been inductive or deductive, the law finders' fundamental assumptions have
been that 1) the law exists for the protection of social interests, and 2)
that social interests are better reflected in social feeling of a general
sense of justice than in a reasoned theory.35
The ability to reinterpret legal premises
should not be seen as capricious. The law aspires to be both certain and
just.36 Smith believes that
lawyers tend to be more conservative than laymen. He believes they have a
superior understanding of the meaning and value of the accepted principles of
unwritten law. He also believes they better understand how these rules
represent the abiding sense of justice, and centuries of experience. This
conservatism impedes change. A line of decisions can not be reversed upon
itself, and if it is forced to change it does so in wide sweeps and slow
curves.37 The "law maker" is more interested
in certainty and the "law finder" is more interested in justice.
Legislation must be made when judicial decisions are inadequate. The judiciary
is then delegated to finish the legislators' thoughts.38 Philosophical theories also influence the law.
There is a theme among the Natural
Law theorists, the Positivists, and the Historicists, for example. They
believe that law is a historical phenomenon39
which can be compared. They see these two, history and comparison, as the
vertebra of the system.40 The Linear Theory is that laws should appear
in a society in a particular order. Smith denies this because of there is so much
borrowing among nations.41
The origin of institutions is always made difficult by this borrowing. Sheer
resemblance is an insufficient test.
The likelihood of the law developing separately in one society is slim
unless there was no intermediate link between it and other societies with
similar institutions. Roman Development: Strong legal systems developed in societies
that clung to precedent in order to develop certainty and stability. These
were nations like Egypt, Babylonia, and Rome. Nations like Greece, with its
orientation toward philosophies and equities, had fairly little. Commercial
and crowded nations also tended to develop strong legal institutions.42 Roman law finders were opinion leaders43 from the among the populace. These
Daysmen, who the Romans called "Iudex" were guided by experts on
the law called "magistrates". During Rome's first 150 years the
Iudex were priests. Later they became a naturally selected secular group.
They practically controlled the development of Roman law.44 The magistrates provided the Iudex
with certain criteria for their decisions. These instructions were the
formula in which the law matured.45 As the empire expanded, especially into Gaul,
Roman law no longer applied. The new subjects were not Romans, and they were
often far more developed than the conquerors. "The principal problem in
this period was the regulation of commerce. An agricultural legal system
didn't apply."46 Separate
legal codes began to mature. The jus civile applied to Romans and to their
dealings with foreigners. Jus gentium was the law which the preators applied
among the subjects. The law finders' formulas and the law makers' edicts were
clearly applied in jus gentium. It respected local law except in matters of
contract and property.47 The locus of Roman power gradually shifted
from the republic to Caesar. This centralization made the decisions of the
great jurists, and the rescripta of the emperors, into "ius" and
"leges". Ius was "found law", and leges was "made
law".48 We now refer to these
as "common law" and "legislation". The other relevant change under the monarchy
was the development of a separate Christian jurisdiction. The Roman courts
relied on oaths in the worship of dead emperors. The Christians found this
strange, so they turned to their own members to resolve disputes.49 The church gradually developed a
powerful hierarchical organization of tremendous force. By the time of Constantine, in 305 CE,
bishops located in the cities held jurisdiction over the surrounding
countryside. The bishops answered to archbishops. The archbishops answered to
five regional patriarchs, with Rome tending to have supremacy.50 Constantine granted the church an edict of
toleration in about 313 CE. Then he began to grant the Christian clergy the
same rights as Roman priests. By the end of his administration, in 337 CE,
the church had become the state religion. Church machinery began to become
part of the political machinery. Roman rectors and Christian bishops were expected
to work hand in hand.51 Ecclesiastical jurisdiction over morals was
exercised through confession, penances, and the threat of excommunication.
The bishops also acted as Daysmen and arbitrators. Plaintiffs could choose
between church and civil courts. The decisions were binding on the
Defendants, and were recognized in the eyes of Roman law. The ecclesiastical
courts held original jurisdiction over the clergy. If the clergyman was
convicted in the church, he would be defrocked and handed over to the civil
courts for punishment.52 Germanic Development: The Germanic tribes which invaded in the fifth
century faced the same problem as Caesar faced when he invaded Gaul in the
first century BCE. Their laws and courts were far more primitive than those
of their new subjects. Theirs were popular courts in which every free man in
the hundred assembled and sat before the king or prince. The plaintiff, supported by his friends,
would demand that the criminal defendant be outlawed from the tribe,53 or that the tort defendant pay a
fixed penalty.54 There were no
provisions regarding property or the enforcement of contracts.55 The pleadings were so complex that
barristers began to appear as wise friends whispering in the litigant's ear.56 The wisemen determined the law and
duty in the case, and often the method by which the case was to be decided.57 The burden of proof, and the method
of proof, was given to the Defendant.58
After the verdict was rendered, the litigants were responsible for enforcing
the judgement.59 The methods
of proof were often God's judgements,60
or oaths.61 Proof by God's
judgment included ordeals such as burning, immersion, and wager of battle.
The Germanic Tribes also had a form of cities of refuge where the accused
could seek asylum from the blood avenger until the matter was tried.62 By the end of the fifth century it was time
for the Germanic tribes to begin writing down their laws and customs. The
king would "have the wisemen consult and then tell their wisdoms to the
assembly, which then gave its assent, while scribes took them down in Latin,
not as wisdoms for a single case, but as the wisdom for all similar
cases."65 The most learned of
the wisemen were clergy.66
When the Goths converted from Arianism to Orthodox Christianity, "the
clergy became more prominent than ever, even outnumbering the secular
magnates on the Council, which had come to take the place of the popular
assembly inasmuch as no laws could be passed without its consent."67 Much Roman law was incorporated in
the new, Gothic legislation.68
Charlemagne unified all Christians who acknowledged the supremacy of the
Bishop of Rome, except the British and some of the Spanish. The church
sanctified the authority of the Carolingians. It joined in their mission to
expand the realm of Christendom. It
supported their criminal decisions by making nithings excommunicants. Then it
put its weight and wisdom behind them. This church-state relationship lasted
throughout the Middle Ages, and still has some force.69
Tribal law faded in favor of royal courts, and
both Charlemagne and Henry II began using circuit riders, or missi, as their
courts. They followed the precedent in Deuteronomy by staffing these courts
with both a layman and a churchman.70
Compilations of these laws began to be made, and "in each century we
find copyists adding new wisdoms and additional legislation in an unofficial
manner. In this way we may trace the development of law from century to
century."71 "Canon law had its
sources in Roman Law. In its jurisdiction over morals it was developing a
moral code, which, being enforced only by church penalties, is rather to be
termed morals than law. Among the Germans the power of the church was much
greater. The reason was simple: when the Germans became orthodox, the church
had to educate the barbarians. The Church was, among other things, the
schoolmaster of the Middle Ages. It held its high position by reason of the
services it rendered. Its ideas of government were far in advance of German
ideas, and so the barbarian rulers came to depend much on the advice of the
clergy. Generally, therefore, the church and the secular authorities
co-operated."72 There was also shared jurisdiction between the
church and the crown. The crown had jurisdiction over intestate passage of
real property, but the church governed intestate personal property. The crown
had supervision over ecclesiastical trials, especially since the bishops were
royal officers. The synod was also really an ecclesiastical subdivision of
the royal court since it was appointed and convened by him.73 "At the time of
the breakdown of the(Carloginian) Empire, church law consisted of law
interpreting its own dogmas, its own government and its position in regard to
morals. These rules were expressed in the canons of the councils and in the
decretal letters or decretals of the Pope and the Bible. The various parts of
the Bible had different weight. The New Testament, as interpreted by the
church of course, was absolute authority. The Old Testament had weight only
in matters of morals, the rest of Judaic law being disregarded."74 The Reformation: Up to the Reformation, the ecclesiastical courts had jurisdiction
over all matters of members of the clergy; widows, orphans, and helpless folk
who could not otherwise get justice; crimes that were mostly sins; sexual
crimes; dishonesty; marital and family law; intestate succession to personal
property; and oaths and usury in contracts.75 Beginning in the twelfth century Roman law began
to follow the ascendancy of absolute monarchs. Tribal and territorial law was
crowded out, and no other system of law was readily available. The kings appointed law finders to the
courts based on their rights as landholders. There was no system of appeal.
Urbanization made the city courts inadequate to deal with merchants and
personal property. The gentry were too entrenched to allow reforming
legislation. In essence, Europe needed new law to suit the new social
structure, and there was no existing agency to supply it.76 Universities began to teach the
Corpus Juris Civilis which Justinian had promulgated in 534. Lawyers began to
compete with ecclesiastical advisers, and people naturally began going to
them because they had a reputation for education. As personal property
ascended over real property, and the power passed from the gentry to the
townsmen, the lawyers asserted Roman Law in the royal courts.77 By 1215 there were both civil and
criminal juries in England.78
During the Lancastrian period parliament changed from a law finding body
which advised the king, to a law making body with the king as one of its
members.79 Royal courts quickly swept the other law
finding bodies away.80 Jus Gentium
was used to resolve conflicts among jurisdictions.81 The assertion of the crown over the
ecclesiastical courts, however, was
slower. The Reformation kings did not attempt to obtain jurisdiction over
clergy crimes, but insisted that defrocked clergy be delivered to the civil
courts for punishment. Contracts were modified so the pledge of faith was
under the jurisdiction of the royal court. There was concurrent jurisdiction
over contracts for a time, but the British in particular came to choose the
royal court. Ecclesiastical jurisdiction over the marriage sacrament, and
its dissolution, was unquestioned,
but the evidence of marriage as to inheritance and legitimacy became subject
to royal court supervision.82
Jurisdiction over appeals was more blunt.
Henry VIII's 1533 Statute of Appeals granted the king plenary power
without appeal to any foreign king or potentate.83 American Law followed the development of
British Law, both before and after the War of Independence. The key
distinction was that a written Constitution was set forth as the basis of all
additional law. The amount of interpretation which the Constitution has
required stems from the generality with which it is applied.84 The rights in this Constitution were
eventually even imposed on the States by the 14th Amendment.85 Summary: In essence, Smith's theory is that law is
distinguished from manners and morals by its means of enforcement. It is
derived from the social will, and in conflict it bends to the social will.
Law is most often "found" in a Platonic or Rousseauian manner.
Inquiry determines what the custom is, and the courts assert that as the law.
This is still the practice in common law, or equity. Law may also be
"made" by an act of a king or assembly of citizens. Yet even this
is usually based on law that has already been "found". If there is
a conflict between the two, made law prevails over found law. The idea is the
desire to have law that is both fair and certain. It is a conflict that can
never be totally resolved. The two pinions of law in Western Christendom
are Mosaic and Roman Law. Mosaic, or Biblical, Law is traced mostly through
the socialization of the citizens, including the law finders and the law
makers. Before the Reformation, a substantial number of the law finders and law
makers were actually members of the clergy. Mosaic law predominated until the
Reformation. Then, when the power of the church was broken, lawyers ascended
over clergy as advisors to the law makers, and Roman Law began to prevail as
a model and precedent. Arnold Toynbee discusses this same idea in
Chapter X of his Study of History: "Roman Law which,
in the course of ten centuries ending with its codification by Justinian, had
been slowly and laboriously elaborated to met the needs, first of the Roman
people and afterwards of the whole of Hellenic society, had been rapidly left
stranded by the collapse of the way of life which it had been designed to
regulate. Thereafter the symptoms of decay were followed by the symptoms of
new life on the legal, as on the political plane. The impulse to provide a
live law for all living society did not find its first vent in any move to
reanimate Roman Law. Each of the two Christian societies, Eastern and
Western, demonstrated the sincerity of its belief in a Christian dispensation
by attempting, first, to create a Christian law for a would-be Christian
people. In both Christendoms,
however, this new departure was followed by a renaissance, first of the
Mosaic law contained in the Scriptures which Christendom had inherited from
Jewry, and secondly of the Roman law as petrified in the Code of Justinian. "In Western, as
in Orthodox, Christendom the ghost of Moses trod hard on the Apostles' and
the Evangelists' heels. Yet a resurgent Moses was overtaken by a resurgent
Justinian."86 Toynbee is mirroring Smith's position that the
change of systems, at the time of the Reformation, reflected society's
decision to move from more certain to more fair. |
|
Current
Wyoming Law FIRST
DECALOGUE Slaves FIRST PENTAD: Males 2When you buy a Hebrew
slave, he shall serve six years, and in the seventh he shall go out free, for
nothing. 3If he comes in single, he shall go out single; if he
comes in married, then his wife shall go out with him. 4If his
master gives him a wife and she bears him sons or daughters, the wife and her
children shall be her master's and he shall go out alone. 5But if
the slave plainly says, `I love my master, my wife, and my children; I will
not go free,' 6then his master shall bring him to God, and he shall
bring him to the door or the doorpost; and his master shall bore his ear
through with an awl; and he shall serve him for life. SECOND PENTAD:
Females 7When a man sells his
daughter as a slave, she shall not go out as the male slaves do. 8If
she does not please her master, who has designated her for himself, then he
shall let her be redeemed; he shall have no right to sell her to a foreign
people, since he has dealt faithlessly with her. 9If he designates
her for his son, he shall deal with her as with a daughter. 10If
he takes another wife to himself, he shall not diminish her food, her
clothing, or her marital rights. 11And if he does not do these
three things for her she shall go out for nothing, without payment of money. 'Eved 'Ivri The policy of involuntary servitude in the
American colonies was almost identical with the Israelis. The `Eved `Ivri were British indentured
servants recruited from among the poor. The farmers were promised fifty acres
for each member of their family they brought to Virginia, and could receive
free transportation if they would work for three to a maximum of seven years
for their sponsor without compensation. This offer was especially attractive
to tenant farmers who were struggling to survive on borrowed land, and to
young men who hoped to learn a trade and perhaps also to read. By 1625, 40%
of Virginia's population was indentured servants.1 In addition to those who volunteered for such
contracts, were prisoners of Scottish and Irish wars, convicts, and young
boys and girls who were kidnapped in London and sold in the colonies. Even
these served a maximum of seven years, and had the benefits of colonial law
at the end of their time.2 William Penn in particular attracted German
and Scotch-Irish indentured servants, and extended the benefits of
Pennsylvania law to them at the end of their service.3 By 1776, a substantial part of the
population was of German and Irish heritage, and German competed with English
as the dominant language. The purpose of the system was to alleviate the
intense labor shortage especially on the tobacco farms in Virginia and
Maryland. The advantage to the indentured servant was that it relieved the
him of indebtedness, and hopefully restored him to society with a marketable
skill. The benefit to the farmer was the fifty additional acres which he
received for sponsoring the indenture, plus seven years of free labor.
Although it was possible for the servant to renew his indenture contract,
there was little inducement to do so since farms were available almost for
the asking.4 The females who came as servants usually came
as prospective wives. They were used in the manor house, as dairy maids, or
worked hoeing tobacco alongside the young men. They did not have the same
duties or benefits which Exodus 21:8-11 or Deuteronomy 15:12-17 provided for
`Eved `Ivri of Davidic times, but did have the same right to remain with
their husbands.5 The treatment of the indentured servants could
be indulgent, as shown by a letter from Richard Tuggeyy to his parents about
marriage and profits. It could also be brutal as shown by a letter from
Elizabeth Sprigs to her parents discussing field labor, hunger, cold, and
beatings.6 Under Maryland law, indentured servants had to
be furnished adequate food, clothing and shelter during their service. Those
who completed their tenure were granted 50 acres of land, a complete suit of
clothes, an axe, two hoes, and three barrels of corn.7 This is based directly on the
Covenant Code. Unlike the Israelis, who had a common interest
in improving the status of Israel as a unit, the Virginian farmers faced
competition from the former indentured servants. The farmers did not share a
common objective with their indentures. The law and custom was still exactly
in tune with the precedent of the Covenant Code. Service was limited to no
more than seven years, exactly like Deuteronomy 31:10, and when the indenture
was completed he was furnished from the masters stores, exactly like
Deuteronomy 15:13-14. Although they were not compensated while on the job,
the indenture gave his service in exchange for passage and grub stake. This
was entirely consistent with Leviticus 25:39. If the indenture included the
wife and children, the master had the right to their services. This too is
consistent with the Covenant Code.8
The indentured servant did not become the property of the master to be passed
on to his heirs. The indentures were treated exactly like the `Eved `Ivri,
with the exception of the duties and benefits of the maids. The Covenant Code
stated that the master had rights of concubinage, but when such rights were
exercised in the American Colonies they were beyond the explicit provisions
of the contract. Smith requires that to establish imitation,
there must be both similarity in the provisions and access to the previous
law. These tests are met here because there is both 1) a striking similarity
between the treatment of the indentured servants and the `Eved `Ivri, and 2)
because the authors of the colonial laws had ready access to the Covenant
Code. 'Eved
Cana`ani Indians captured during wars were everywhere
made into servants or slaves. They
had no rights under law.9 Negroes began to arrive in the colonies in
about 1619. As heathen members of a different race, they were regarded as
`Eved Cana`ani. At first they were
slaves for life or until baptized, but the "black codes" which were
in evidence by 1664 eliminated baptism or conversion as an emancipation.10 By 1682 the distinction of Christian
and heathen had been eliminated in favor of a frank racist law which barred
Negroes from freedom.11 Indian and Negro slaves were the property of
their master,12 and passed through
his estate as part of that property or real estate.13
Their servitude was not intended to lead to a trade or
self-sufficiency, it was servile, and designed to perpetuate their condition
of slavery. Children born to slaves were also slaves of their mother's
master.14 Both the condition of these slaves, and the
reasoning for that condition, reflects the provisions of the Covenant Code
pertaining to `Eved Cana`ani. It was many colonists' stated purpose of many
colonists - especially in Massachusetts - to imitate the Mosaic laws.15 The United States was one of the last nations in
Western Civilization to outlaw slavery. The process started in New England,
and by the time of the Continental Congresses slave holding had been
eliminated north of Maryland. Very specific provisions had to be taken out of
the Declaration of Independence, and others written into the Constitution,
for the explicit purpose of persuading the South to stay with the rebellion
and the Constitutional union.16
But as early as March 2, 1807, President Jefferson secured passage of an Act
prohibiting the importing of slaves from Africa.17 In 1820 Congress passed the Missouri
Compromise which prohibited slavery in the Louisiana Purchase north of 36030'.
By this Act the southern states admitted that the federal congress had the
power to forbid slavery in unorganized territories.18 The Compromise of 1850 applied the
principle of popular sovereignty to the territories of the Mexican Cession.19 In 1854 Chief Justice Taney wrote the decision
in Dred Scott v Sanford20.
The holding was a simple example of strict construction of the Constitution: "The only two provisions {in the
Constitution} which point to (slaves) [Article I, Section 9, and Article IV,
Section 2], treat them as property, and make it the duty of the Government to
protect it; no other power, in relation to this race, is to be found in the
Constitution; and as it is a Government of special, delegated, powers, no
authority beyond these two provisions can be constitutionally exercised. The
Government of the United States had no right to interfere for any other purpose
but that of protecting the rights of the slave owner, leaving it altogether
with the several States to deal with this race, whether emancipated or not,
as each State may think justice, humanity, and the interests and safety of
society, require. The States
evidently intended to reserve this power exclusively to themselves." The elimination of slavery was a secondary
issue in the Civil War until July, 1862, when McClellan was defeated on the
James Peninsula and Union recruitment dropped off critically. Congress took
the initiative by passing the Confiscation Act which authorized the seizure
of Confederate property - including slaves. Lincoln waited until a perceived
Union victory at Antietam before he followed with the Emancipation
Proclamation on September 23, 1862. Lincoln's Proclamation only freed those
slaves who were behind Confederate lines as of January 1, 1863.21 It was a war measure which could not
be enforced.22 It applied to slaves
held in Texas, and in a general belt of deep southern states reaching from
eastern Mississippi to Virginia. It did not apply to those in the border
states which had not seceded, and because of the nature of the war in
Arkansas, Tennessee, and Florida there was substantial doubt whether the
Proclamation applied to slaves who were held there. It would not have applied
to Louisiana since that was clearly under Union administration. The point is
that the Confiscation Act still viewed the slaves as property, and the
Emancipation Proclamation was a war measure which only applied to a very
specific and isolated population. Neither was a general liberation. The use of `Eved Cana`ani was ended in the
United States by the force of the Thirteenth Amendment and the statutes which
were made to enforce its intent.23
The United States ratified the Thirteenth Amendment on December 18, 1865. The
language of the Amendment is clear and simple: "Neither slavery
nor involuntary servitude, except as punishment for crime whereof the party
shall have been duly convicted, shall exist within the United States, or any
place subject to their jurisdiction." Once it was ratified there was little
explanation necessary. The commentators' expositions are simple and direct. "This provision
is self executing, and by its unaided force forbids not only Negro slavery
but all other kinds of slavery as well. It is a denunciation of a condition,
and not a declaration in favor of a particular people. It reaches every race
and every individual."24
"The prime
purpose of those who outlawed `involuntary servitude' in the predecessors of
the Thirteenth Amendment, in the Amendment itself, and in the statutes
enacted to enforce it, was to abolish all practices whereby subjection having
some of the incidents of slavery was legally enforced, either directly, by a state's
using its power to return the servant to the master, or indirectly, by
subjecting persons who left the employer's service to criminal
penalties."25 Even though slavery was over, the freed slaves
did not achieve citizen status. The Lincoln-Johnson policy clearly intended
to leave race relations in the hands of the white people in the individual
states.26 The result was highly
restrictive "black codes". Only five New England states allowed
blacks to vote.27 These codes
reflected a change in the in the basic issue behind `Eved Cana`ani. The tangible issue of slavery and legal
bondage was changed to an emotive issue of racism. Resident aliens, whether
barbarians or gentiles, had never been granted citizenship easily. The former
slaves had the additional problem that they were not only strangers to the
society, but were of another race. Immigrants who become naturalized into the
community can rely on the assumption that once their grandchildren have
dropped their dialect, been educated in the local school, and met certain
other acts of allegiance, they can be accepted as full citizens with an
unusual last name. This assumption was not available to the former slaves.
Even if they did all these things, they were still black. In 1865 the Radical Republicans responded to
the Lincoln-Johnson policy by instituting Freedman's Bureaus in every
Confederate state. These Bureaus took jurisdiction over employment contracts,
black criminal process, and other subjects in which the former slaves could
not find justice in white courts. The purpose was to provide blacks with
equality before the law, not social equality.28 This struggle between Johnson and the Radicals
Republicans on the mechanics of reconstruction was the genesis of the essence
of the Fourteenth Amendment. It was passed by Congress in 1866. Ratification
was made a condition of readmission into the Union, and it was adopted in
1868. This Amendment applied the Bill of Rights to the individual states.29 By this amendment, the Dred Scott
decision was overruled. The Amendment tried to provide equality before the
law. Still the former `Eved Cana`ani could not
enjoy equality. Specifically they could neither vote nor hold office in
either the North or the South. So,
once again Congress had to amend the Constitution. The 15th Amendment limited
voting restrictions: "The right of citizens of the United
States to vote shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude." It did not enfranchise the former `Eved
Cana`ani, it only excluded the three cited reasons as grounds for
disenfranchisement. Introduced in February, 1869, it was ratified in March,
1870.30 The race issue was
left in the hands of the white powers in the individual states.31 The Civil Rights Act of 1875 provided
specifically that "citizens of every race and color...(are entitled to)
...the full and equal enjoyment...(of restaurants, hotels, trains, and all)
places of public amusement."32
This and the Freedman's Bureau Act of 1866
were gutted by both public policy and the Supreme Court decisions which
followed. The Civil Rights Cases33 left race relations up to
individuals. "It is State
action of a particular character that is prohibited. Individual invasion of
individual rights is not the subject matter of the amendment." Louisville, New Orleans and Texas Railroad v
Mississippi
held that states could forcibly require segregation in railroads. Williams
v Mississippi ruled that a state could deny voting rights to black men.34 Plessy v Ferguson35 was the controlling case to establish
the separate-but-equal doctrine. "We consider the
underlying fallacy of the plaintiff's argument to consist in the assumption
that the enforced separation of the two races stamps the colored race with a
badge of inferiority. If this be so, it is not by reason of anything found in
the act, but solely because the colored race chooses to put that construction
upon it. The argument necessarily assumes that it, as has been more than once
the case, and is not unlikely to be so again, the colored race should become
the dominant power in the state legislature, and should enact a law in
precisely similar terms, it would thereby relegate the white race to an
inferior position. We imagine that the white race, at least, would not
acquiesce in this assumption. The argument also assumes that social
prejudices may be overcome by legislation, and that equal rights cannot be
secured to the negro except by an enforced commingling of the two races. We
cannot accept this proposition. If the two races are to meet upon terms of
social equality, it must be the result of natural affinities, a mutual
appreciation of each other's merits and consent of individuals." Legally free by Constitutional Amendment, the
American `Eved Cana`ani were still socially bound by public policy as
supported by both the state legislatures and the Supreme Court. Part of the
background to the severe discrimination was the impact of American
imperialism. In the 1890s the United states took millions of Filipinos under
its tutelage who - like the American Indians - it had no intention of
admitting to equal citizenship.36 This remained the state of affairs until May
17, 1954 when Chief Justice Warren wrote Brown v Board of Education, as
his first decision, and on behalf of a unanimous court. The decision was
brief, and the language was simple; "We have now announced that segregation
is a denial of the equal protection of the laws."37 The black community had been building strength
within itself, through education, especially since Broker T. Washington's
1890 Atlanta Declaration.38
An almost direct line ran, through the National Association of Colored People
(NAACP), from Washington's Atlanta Declaration to Thurgood Marshall's
argument in Brown v Topeka.
Only slight gains had been made to advance equality; the United Mine
Workers had allowed blacks into full membership, and several colleges and
graduate schools had admitted them into their programs. With the Brown
decision the dam broke. In December, 1955 Rosa Parks, a member and an
employee of the NAACP, refused to move to the back of a Montgomery, Alabama
bus, and the popular civil rights movement began.39 Dr. Martin Luther King appeared, and
modified the course set by Brooker T. Washington with the non-violent
philosophy of Mohandas Gandhi.40
In 1957 Congress passed the first Civil Rights
Act in 82 years. It established a Civil Rights Commission, prohibited
interference with the right to vote, and provided federal protection for voting
rights.41 In September, 1957 President Eisenhower used
the National Guard to over ride Governor Orval Faubus, and compel the
enrollment of black students in Arkansas schools.42 The 1960 Civil Rights Act allowed the
appointment of federal referees to aid blacks in registration and voting.43 On June 11, 1963 President Kennedy sent
Attorney General Nicholas de Katzenbach to arrest Governor George Wallace for
standing in the doorway of the University of Alabama to prevent the
registration and enrollment of black students.44 In July, 1964 President Kennedy's Civil Rights
Act guaranteed equal access to all public accommodations, prohibited
discrimination in any program receiving federal aid, and empowered the
Attorney General to enforce the Fourteenth and Fifteenth Amendments. In 1964 the Twenty Fourth Amendment forbade
the use of poll or other taxes as a device to prohibit registration and
voting.45 In 1965 President Johnson's Civil Rights Act
eliminated all qualifying tests for registration and voting.46 It was after this Bill was signed
that Dr. Martin Luther King chanted; "Free at last! Free at last! Great
God Almighty, I'm free at last!" The 1968 Civil Rights Act prohibited
discrimination in sale or rent of real property on racial grounds.47 From Colonial times to 1954 the assumption had
been that slavery and race relations were subjects of concern to the states.
The assumption relied on the ruling white class holding a benevolent care for
its black subjects. After the Civil War there was a rush of effort by the
Radical Republicans to make the liberation of the Negroes a reality. When the
states and the courts failed to implement the Radical Republican policies,
and even undermined that legislation, the Negroes changed their orientation
toward education, and set upon a course set by Brooker T. Washington. This
course continued until the United States Supreme Court changed its policy in Brown
v Topeka, and began a course of federal intervention. The new course
assumed that education and voting could liberate the negro. That course
removed every legal obstacle to assimilation, and left the process up to the
individuals rather than governments. Peonage: In addition to the problems of the American
`Eved Cana`ani, the Mexican War disclosed a Spanish custom. The permanency
and chattel status of negro `Eved Cana`ani had undercut the economic basis
for indentured servants and `Eved `Ivri in the British colonies as early as
1660. By the beginning of the Eighteenth Century they had disappeared
entirely, or changed into grubstakers and share croppers.48
The Mexicans, however, had a tradition of peonage. This system was
described in State v Murray49: "Under the
peonage system a laborer is absolutely bound to his employer. He is
absolutely compelled to stay and labor until he has paid his indebtedness. If
he attempts to leave, or leaves, he can be restrained or forced to return.
The employer can sell his unexpired term to anyone who will pay the amount due
and assume the obligations of the master." The similarity between this and the Covenant
Code is remarkable. These exact provisions were discussed as part of this
pentad in the first section of this work. Leviticus 25:44 allowed `Eved
Cana`ani to be owned, and passed as property.50 This system also meets Smith's
copyright criteria in that the law was similar to the earlier Covenant Code,
and the author had access to the earlier Code. The Americans had little tie
to this tradition, and had eliminated involuntary servitude from their
society, so the Mexican system was outlawed by 42 USCA 1994. SECOND DECALOGUEOffences
Against the Person FIRST PENTAD: Capital Offences 12Whosoever strikes a
man so that he dies shall be put to death. 13But if he did not lie
in wait for him, but God let him fall into his hand, then I will appoint for
you a place to which he may flee. 14But if a man willfully attacks
another to kill him treacherously, you shall take him from my altar, that he
may die. 15Whoever strikes his
father or his mother shall be put to death. 16Whoever steals a man,
whether he sells him or is found in possession of him, shall be put to death. Homicide: As discussed in Section I, the Covenant Code
structured its laws according to their severity. The same structure is
followed in Wyoming Statutes 6-2-101/107, pertaining to Offences Against the
Person. The first provision, W.S.
6-2-101 provides that any person who "purposely and with premeditated
malice ... kills any human being ... shall be punished by death or life
imprisonment ..." The next two provisions, W.S. 6-2-102 and 6-2-103, are
inserted to increase the humaneness - and the caution - of the law when the
death penalty is awarded. W.S. 6-2-102(e) specifies that "The death
penalty shall not be imposed unless at least one (1) of the aggravating
circumstances ... is found." A list of eight "aggravating
circumstances" is then provided which are designed to assure that the
homicide could not have been less than deliberate.1 A list of "mitigating circumstances"
is also provided which would excuse the perpetrator.2 As in the Covenant Code, both age and
mental condition are considered "mitigating circumstances".3 A pre-sentence hearing is provided to
specifically consider these aggravating and mitigating circumstances.4 The judge can not impose a death
penalty unless the jury makes a specific, separate finding for the death
penalty, and designates which of the "aggravating circumstances" it
"found beyond a reasonable doubt."5 W.S. 6-2-103(a) provides the additional
precaution that every death sentence shall automatically be appealed to the
Wyoming Supreme Court. As in the Covenant Code, murder can be
committed by adults6 of
either gender.7 The
cause of death must be efficient and proximate. Remote causes will not
suffice.8 Wyoming courts do not,
however excuse a homicide because the victim was dying or had existing fatal
injuries.9 The rabbis' position
was that if the victim survived long enough to be compensated in tort, the
accused could not be liable for murder. The present position dissents from
their presumption that all wrongs are compensable. The current position is
that "to constitute punishable homicide, death must ensue within a year
and a day from the infliction of a mortal wound."10 The rabbis' delineation of homicides as
"justifiable, misadventure, negligent, culpable, and felonious"11 has not been modified very much. Ø
"Justifiable"
and "misadventure" have been joined as "excusable or
justifiable". "If the
killing is legally excusable, privileged or justifiable, there cannot be any
legal conviction of a crime, and, if conviction is had, there must be an
absence of legal excuse, privilege, or justification."12 Ø
Negligent
homicide, under W.S. 6-2-104(a)(II) and 6-2-107, is "when, through a
gross deviation from the standard of care ... he fails to perceive a
substantial and justifiable risk that the harm he is accused of causing will
occur, and the harm results." Negligent homicide specifically applies to
killing through reckless driving. The sentence for this misdemeanor is
imprisonment for one year and a $2,000 fine. If the driver was under the
influence of drugs or alcohol at the time of the accident the sentence is 20
years in the penitentiary.13
In the words of the rabbis, the homicide is negligent if it stems from
reckless driving, but it becomes culpable if alcohol or drugs are involved. Ø
The
concept of culpable homicide is also reflected in W.S. 6-2-105, "A
person is guilty of manslaughter if he unlawfully kills any human being
without malice, expressed or implied, either voluntarily, upon sudden heat of
passion; or involuntarily, but recklessly." Ø
Felonious
homicide has been split into first degree murder, which requires
premeditation, and second degree which is "purposely and maliciously but
without premeditation".14
The rabbis had defined felonious homicide as "done with deliberate and
specific intent."15 Since that time we have distinguished
between purposefully but spontaneously, and premeditatedly. The distinction
is whether the accused intended for the person to die one second before
the fatal wound was inflicted. The idea of a City of Refuge, "a place to
which (the wrong-doer) may flee" was modified to the sanctuary of any
church rather than just the seven cities designated in the Book of Numbers.
After the Reformation, refuge could be taken either in the church or in the
police offices provided by the state.
Protective custody is still very much available in Wyoming. The hatra'ah was not brought forward from the
Covenant Code.16 Neither the
Romans not the Celtic tribes had this tradition of warning a wrong-doer. The
hatra'ah was left in the Orient.17 Parents: The Fifth Commandment has lost its force and
effect. Striking, or cursing, parents is no longer even separately mentioned
in either statutes or common law. Verse 15 faded away when the magical power
went out of curses and blessings. Kidnapping: The rabbis viewed removal, detention,
enslavement and selling as four elements of the same crime.18 Current law views them
separately. Kidnapping is any unlawful removal from a
residence, business or vicinity. If the victim is voluntarily released
unharmed, the sentence is not more than 20 years. "If the defendant does
not voluntarily release the victim substantially unharmed" the sentence
is 20 years to life.19 Confinement
is considered kidnapping if it is done for a reward or as part of a felony.20 "Restraint" is less than kidnapping.
It becomes a felony if the victim is deprived of his liberty and is either
exposed to bodily harm or bound to involuntary servitude.21 If the victim is only deprived of his
liberty restraint remains a misdemeanor.22 SECOND PENTAD: Minor Offences 18When men quarrel and
one strikes the other with a stone or with his fist and the man does not die
but keeps his bed, 19then if the man rises again and walks abroad
with his staff, he that struck him shall be clear; only he shall pay for the
loss of his time, and shall have him thoroughly healed. 20When a man strikes his
slave, male or female, with a rod and the slave dies under his hand, he shall
be punished. 21But if the slave survives a day or two, he is not
to be punished; for the slave is his money. 22When men strive
together, and hurt a woman with child, so that there is a miscarriage, and
yet no harm follows, the one who hurt her shall be fined, according as the
woman's husband shall lay upon him; and he shall pay as the judges determine.
23If any harm follows, then you shall give life for life, 24eye
for eye, tooth for tooth, hand for hand, foot for foot, 25burn for
burn, wound for wound, stripe for stripe. Assault and Battery: Simple assault is any attempt to cause bodily injury
by a person who has the apparent ability to inflict the injury. Battery is an
unlawful touching. These are misdemeanors carrying a $750.00 fine.23 If a weapon is used it becomes a
felony as aggravated assault. Up to 10 years imprisonment may be imposed
depending on the indifference shown to human life.24
Verse 22 has been altered. Intentionally
injuring a pregnant woman is now a felony rather than a tort.25 The defendant may be prosecuted both
for homicide of the fetus and for aggravated assault of the mother.26 Child abuse is treated as a felony punishable
by 5 years imprisonment if the adult is 6 years older than the child.27 Rape is treated separately as sexual assault.
First degree is a felony entailing 5 to 50 years imprisonment if force, domination,
or intimidation is involved.28
Second degree entails up to 20 years, if submission rather than force is
involved.29 Third degree entails
up to 5 years if a minor is involved.30
Fourth degree entails up to 1 year if no intrusion is involved.31 Current law does not require
corroborative evidence of the rape,32
and the victim's prior conduct or reputation may only be introduced upon
written motion to the court prior to the trial.33 Here in assault, modern law returns to the
Covenant Code's premise that criminal acts are compensable in tort.34 The damages may be compensatory to
off set bodily injury,35 or they may
be punitive to punish the wrongdoer and make an example of him.36 There is also some support for
"nominal damages" or psychic damages where there was no actual
physical contact or injury.37 The courts are especially receptive to
these nominal damages where "rape-trauma syndrome" is involved.38 Modern law does not continue the cap on
damages which was provided by lex talionis, nor does it relieve the accused
from criminal liability. Verse 19 is clear and specific: "(a) if the man rises again and walks
abroad with his staff, (b) he that struck him shall be clear; (c) only he
shall pay for the loss of his time, and (d) shall have him thoroughly
healed." Verse 19c & d, limiting damages to the
amount of the specials, has also been set aside in favor of the idea of
"compensation" which is hard to articulate. 22 AmJur2d, Damages 26 reads: "Compensation is
the stated goal of courts in awarding damages for tortuous injury. The purpose of an award is to make the
person whole, to the extent that it is possible to measure his injury in
terms of money. Compensation often
takes the form of putting the plaintiff in the same financial position he was
in prior to the tort, or would have been in had the wrong not been committed
or if the injury had not occurred."39 AmJur2d's editors immediately follow with an
"Observation". "Such statements
as these are over generalizations. They ignore nominal damages and cases in
which exemplary damages are awarded. Also, they ignore restitutionary
recovery in which the goal of recovery is not compensating the plaintiff, but
taking from the defendant the benefit he received. "However, even
with all its shortcomings, compensation of the plaintiff remains the best
expression of the goal of the damage remedy. This principle forms a limiting
force on jury verdicts and indicates that American ideas of justice begins by
placing emphasis, not on retribution, but on compensation. The rules of
damages begin from this point of emphasis."40 The measure of damages begins with
"general damages" as "those which are traceable to, and the
probable and necessary result of, the injury, or are presumed by law to have
resulted therefrom."41
"Special damages" arise from the special circumstances of the case
... and ... may be added to the general damages which the law presumes.42 In personal injury, general damages
include mental and physical pain and suffering, inconvenience, or loss of enjoyment.
These can not be definitively measured in monetary terms and are incurred in
addition to quantifiable damages.43
Special damages are usually synonymous with pecuniary losses such as medical
expenses, loss of earnings, and diminished work capacity.44 Supplement these compensatory damages
with nominal and punitive damages, and the cap provided by lex talionis is
left far behind. What compensates the plaintiff now has little to do with the
standard of paying for lost time and having him thoroughly healed.45 Nor does verse 19b apply any longer. The
defendant may still go to prison and pay a fine to the state even if the he
makes full restitution. Abortion: As with the Covenant Code, if a fetus is lost before
birth, no crime is predicable. If it is born alive and then dies because of a
felonious act, the culpability is the same as killing any other human being.46 The distinction is that when verse
22c was written, in about the 13th Century BCE, the husband determined the
amount of the wife's damages. Now each has a claim in tort. THIRD
DECALOGUE Intentional
Torts FIRST PENTAD: 26When a man strikes the
eye of his slave, male or female, and destroys it, he shall let the slave go free
for the eye's sake. 27If he knocks out the tooth of his slave,
male or female, he shall let the slave go free for the tooth's sake. 32If an ox gores a
slave, male or female, the owner shall give to their master thirty shekels of
silver, and the ox shall be stoned. SECOND PENTAD: 33When a man leaves a
pit open, or when a man digs a pit and does not cover it, and an ox or an ass
falls into it, 34the owner of the pit shall make it good; he shall
give money to its owners, and the dead beast shall be his. 35When one man's ox
hurts another's so that it dies, then they shall sell the live ox and divide
the price of it; and the dead beast also they shall divide. 36Or
if it is known that the ox has been accustomed to gore in the past, and its
owner has not kept it in, he shall pay ox for ox, and the dead beast shall be
his. 22:1If a man steals an ox
or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and
four sheep for a sheep. He shall make restitution; if he has nothing, then he
shall be sold for his theft. 4If the stolen beast is found alive in his
possession, whether it is an ox or an ass or a sheep, he shall pay double. 2If a thief is found
breaking in and is struck so that he dies, there shall be no blood guilt for
him; 3but if the sun has risen upon him there shall be blood guilt
for him. Slaves: The American law regarding the mistreatment of
`Eved `Ivri, or indentured servants, is not really clear. The system did not
exist very long. Verses 26 and 2747
require that an `Eved `Ivri be released in the event of an injury. Especially
if that injury is tortuous. Whether a colonial master had to release an
indentured servant in the event of abuse or on the job injury was never
clearly decided. Treatment of the `Eved Cana`ani, or negro
slaves was not subject to these limitations.
The master could be punished for homicide if the slave died at his
hand.48 He could not be held
responsible if the slave died under the overseer's hand without direction.49 The master could punish his own
slaves for minor offences. The state intervened in felonies.50 Verse 32 calls on any person who damages a
slave to compensate the owner by a fixed amount.51 American slave holders were not
limited by a cap on their damages.52
Animals: The rabbis distinguished torts as
"ox", "pit", "grazing" and "fire".
"Ox" was the known acts of animals which inflicted harm.
"Pit" was any hazard which a person created. "Grazing"
was any ordinary act in an animal's natural manner. "Fire" was any
dangerous thing which might get out of control. Wyoming has always been cattle country, and
cowboys tended to have cows, horses, dogs and cats. The legislators and
jurists they elected tended to reflect their attitudes. Ox: Wyoming Statute 11-6-101/210 pertains to
predatory Animals. The very idea of "Ox". Any land owner has the right to prevent hunting or fishing on
their land.53 The law over rides that right if there is
any evidence that predatory animals like wolves, coyotes, bears, or pumas54 have "become a menace to
livestock". If the landowner refuses to allow the cattleman to enter the
land and eliminate the menace, the cattleman can go to the County
Commissioners and obtain permission to enter.55
Two provisions protect the landowners; first the cattleman can not use
fire arms without permission,56
and second, the cattlemen are liable for property damage they inflict while
hunting or trapping.57 At this point Wyoming law deviates from the
Israeli interpretation of the Covenant Code. The Israelis preferred to solve
problems among themselves. Their attitude of corporate responsibility ran to
collective effort among the people. They did not tend to regard the state as
a separate thing. Americans, even in a state as individualistic as Wyoming,
create a Department of Agriculture which is then empowered to "establish
and implement a ... plan for rodent and predator control."58 The Israelis would not have done
this. They would have solved the problem by the collective efforts of the
local farmers and cattlemen. In
Wyoming, the state becomes involved in the protection of "livestock,
game, and poultry ... feed and foodstuffs, crops and forage production and
human health."59 It can even
issue aerial hunting permits to designated pilots.60 This is done "in accordance with
section 13 of the Fish and Wildlife Act of 1956 or its successor."61 It is also done in accordance with the aeronautics
commission's regulations.62
Wyoming does not yet maintain a separate staff to do this. Individuals are
empowered to enforce the law under the supervision of the state, and the
individuals may collect bounties for the predators or rodents they destroy.63 Cattleman have written the law so they can
shoot any dog found attacking livestock, and are not liable to the dog's
owner if there is any evidence of harassment or damage to the livestock.64 The dog's owner can also be fined up
to $750.00 and imprisoned up to six months.65
Shepherds can only claim their monetary loss, and do not have the right to
shoot the dog.66 If more than
one dog is involved, each owner may be held liable for the entire loss.67 Owners can not be held liable for an
animal attacks unless the victim can show that the owner knew of the animal's
dangerous propensities.68 If the owner does
know, they are strictly liable for any damages, regardless of their efforts
to control the animal.69 Alfalfa hay is the primary feed for Wyoming
cattle. The "alfalfa leaf-cutter bee" eats it and spreads pathogens
or parasites in it. This is a known behavior which causes damage. Those are
the elements of "Ox". Wyoming's Department of Agriculture inspects
any shipments of these bees, and inspects the hives every year. Clean bees
are certified. If the bees are contaminated, the entire hive must be destroyed
by the Department.70 Swine, goats and domestic elk are known to
damage crops and property. "Ox". The owners must fence them in, and
people who let them loose can be fined $250 per offence, and are liable for
the damages.71 When pigs eat garbage they can spread bacteria
which threatens crops, livestock, or human health. "Ox". To prevent
this, the owner must boil the garbage for 30 minutes before feeding it to
them.72 If this is not done, the owner can be
fined $250 per offence and spend six months in the county jail.73 Wyoming's Department of Agriculture
issues the necessary permit to the owner.74 Pit: It becomes important again to point out that
Wyoming is cattle country. Land owners are responsible for fencing animals off their property. The legislators have
even taken the additional step of defining a "lawful fence" as
those "which upon evidence (are) declared to be as strong and well
calculated to protect enclosures, and is ... effective for resisting
breaching stock".75 The statute
details that barbed wire fences must be on four inch posts, which are at
least 20 inches into the ground, and not more than 22 feet apart. There must
be three strands of wire which are not more than 15 inches apart.76 Grazing cattle and horses eat hay, so farmers
who want to keep them out must construct fences around their hay corrals
which are six feet high, on posts which are eight feet apart and 24 inches
into the ground. There must be seven spans of "properly stretched"
barbed wire.77 If the fence does not meet these standards the
farmer can be liable for "damages to animals that may occur by reason of
the unlawful enclosure". The fence must be the sole, and only cause of
the animal's injury.78 If the fence
is properly built, and the animal still breaches it the cattleman can be held
liable for the farmer's crop loss.79 The farmer can be fined $25 for the first
offence for building an unlawful fence, and $100 for each subsequent offence.
They have 30 days to bring the fence up to standard or remove it.80 Conversion: Conversion occurs the moment any person
applies any act of ownership over property which rightfully belongs to
someone else.81 As in other torts,
the person who has been deprived of the property has the right to such recovery
as will compensate him fully for the loss. They are entitled to a sum which
will restore them as nearly as possible to their former position.82 The Covenant Code was written during
agricultural, rather than urban, times, so the treatment begins with rustling.
Rustling is a generally bad idea in Wyoming. Restitution at four sheep for
one may have worked even during the Johnson County Wars, but there was no
restitution for rustling cattle. The law changed in 1982 to reduce rustling
to a felony entailing 10 years in prison and a $10,000.00 fine.83 The Covenant Code specifically speaks to
burglars who are found breaking into property. Wyoming law distinguishes between who enter a property with the
intent to steal, and aggravated burglary in which deadly weapons or bodily
injury are involved. Both are felonies, one entailing up to 10 years and a
$10,000.00 fine, and the other entailing 5-25 years and a $50,000.00 fine.84It also provides lesser included
offences of criminal entry into a building without proof of intent to steal,
criminal trespass of entering land or a building without permission, and
possession of burglar's tools.85 The Covenant Code does not address robbery,
which Wyoming law defines as taking the property of another through
intimidation or bodily injury.86
Nor does it address blackmail which is taking property through accusation of
immoral or degrading conduct which would cause ridicule or contempt.87 Both of these felonies entail up to
10 years imprisonment. If they involve weapons or bodily injury they entail
5-25 years imprisonment. The distinction of these from burglary is that no
trespass of property is involved. In civil law they are classified as
extortion. As discussed earlier, the Covenant Code
imposed a severe penalty on night burglary because of the hatra'ah. Daylight trespass could be innocent, but
incursion under cover of darkness was assumed malevolent. Wyoming law no
longer respects the hatra'ah, but such trespass would be one of the elements
to establish intent. Defense of person and property are also critical
defenses to homicide.88 FOURTH DECALOGUEUnintentional
Torts FIRST PENTAD: In
General 5When a man causes a
field or vineyard to be grazed over, or lets his beast loose and it feeds in another
man's field, he shall make restitution from the best in his own field and in
his own vineyard. 6When fire breaks out
and catches in thorns so that the stacked grain or the standing grain or the
field is consumed, he that kindled the fire shall make full restitution. 7If a man delivers to
his neighbor money or goods to keep, and it is stolen out of the man's house,
then, if the thief is found, he shall pay double. 8If the thief is not found, the owner of the house
shall come near to God, to show whether or not he has put his hand to his
neighbor's goods. 9For every breach of trust, whether it is for
ox, for ass, for sheep, for clothing, or for any kind of lost thing, of which
one says, `This is it,' the case of both parties shall come before God; he whom
God shall condemn shall pay double to his neighbor. Grazing: The grazing law in cattle country provides
that cattle, horses, cats and dogs are allowed "open range" except
in cities and areas that are specifically designated.1 Pedestrians and motorists exercise
ordinary care in avoiding both domestic and wild animals. There is an off
set. Cattle and horses are free to roam and graze, and cattlemen are not
liable for property damage in trespass. Land owners fence livestock off their
land if they want to, but they are not liable for injuries the cattle suffer
during their grazing.2 This is a compromise between "pit"
and "grazing". The grazing law is extended to strays. Any
animal which is wandering at large, and whose owner can not be determined3 can be picked up by a anyone who owns
property in that county.4
The animal is then given to the brand
inspector who holds the stray for 10 days. If the owner doesn't claim the
stray it is sold at public auction, and the person who picked it up is often
one of the bidders. Part of this
person's bid will be the cost of the feed and pasturing.5 Stallions and jacks are a special
problem in breaching their pastures.
If a stallion or jack is found wandering at large, the property owner only
has to hold it for 6 days before gelding it.6 Although the statute does not require that
the brand inspector be involved, it is generally a good idea. Horses found running at large can be
gathered up with the permission of the land owner.7 The land owner in such an instance is
usually the federal Bureau of Land Management rather than a private
individual. In each instance of strays, the person who takes them in - the
bailee - can become liable for the animal's death or injury only if it is the
result of mistreatment or willful neglect.8 Weeds and pests spread in the course of their
normal behavior. It is neither a deliberate act of "ox" nor an
inadvertent act of "fire". This is grazing. Wyoming citizens have the
right to organize a weed and pest district to identify and control such
hazards. It is not state intervention, it is a voluntary compact among the
citizens. If they organize such a district, they can then declare any insect
or animal a pest and any plant a weed.9
Their Weed and Pest Control Board is then instructed to "implement and
pursue an effective program for the control of such weeds and pests." Wyoming has taken an initiative "against
the ravages of insects and other closely related animal pests, poisonous or
injurious plants or plant diseases" by creating the office of State
Entomologist.10 The office is created "for the
protection and advancement of horticulture, apiculture, or any agricultural
pursuit, crop, farm product or pasturage, trees or domestic animals...".
It is listed here because the duties start with the natural
"grazing" behavior of plants and animals which are owned by no one.
The duties then extend to plants and animals a human owns and are governed by
the concepts of "ox" or
"fire". Fire: Under Wyoming law, recklessly starting a fire
which damages property worth at least $200.00 is third degree arson.11
This entails up to five years imprisonment and a $5,000.00 fine.12 Fourth degree arson involves property
worth less than $200.00 and entails up to one year imprisonment and a $750.00
fine.13 A person who allows a
fire to trespass onto another's property is guilty of a misdemeanor entailing
up to six months in jail and a $750.00 fine,14
even if it is the result of a thrown cigarette.15 The civil liability for a trespassing fire is
based in comparative negligence. Both the person allowing the fire and the
victim must exercise reasonable care. In one case a shipper stored buggies
wrapped in paper near some flammable material. They were held just as liable
as the person who allowed the flammable material to accumulate in the right
of way.16 Partly because of this case, Wyoming
requires the railroads, cities, towns, and highway department to burn or
clean their right of ways between September 1 and November 1 of each year.17 The extent of recovery for the loss is
reflective of Wyoming's comparative negligence which requires the Plaintiff
to show that the Defendant was at least 51% responsible for the incident. The
Plaintiff's recovery is diminished by the portion of his negligence.18
If the Plaintiff can show that the Defendant was grossly negligent,
with willful and wanton disregard for the welfare of other people, they can
recover punitive damages. If they can show that the Defendant was culpably,
or almost criminally negligent, then they can recover without any deduction
for their acts of contributory negligence. This is as close as tort law comes
to the strict liability concept in verses 5&6 of this pentad. Current law provides any number of other
examples of where something in the
defendant's possession injures the plaintiff, and the plaintiff had no blame.
This concept of res ipsa loquitor comes directly from the torah concept of
"fire". The issue in such
cases focuses on the amount of damages. What should the defendant do to
compensate the plaintiff for the wrong? Compensation can be either in
specific performance, where the defendant does some act to repair the damage,
or in cash. Often, both are involved. If an oil drilling company hits a
pressure pocket and drilling compound blows across a farmer's field, The
drilling company may have to both clean up the compound and pay the farmer
for the crop loss. This example of res ipsa loquitor is an application of the
torah concept of "fire". As has been discussed above, modern society
has empowered the state to intervene in a lot of instances which used to be
handled between citizens. This intervention is done under the "police
power". Under the Constitution, the United States contracts to provide
"domestic Tranquility" to the people. In the instance of "ox", where there is a clear and
present danger, both the law makers and the law finders provide standards of
individual conduct. The clearest example of this is the precise requirements
for cattle fences. In the instance of "fire", where there is only a
potential hazard, the state tends to regulate commerce. There are several examples of this: - Beehives must be
located at least 2 miles apart to prevent "the spread of bee diseases
and other contagious or infectious diseases among bees..."19 Bees and hives must also be inspected
before shipment.20 - Nursery stock trees
are sold and transported only by licensed dealers. Their premises must be
inspected as "free from injurious insects, plant diseases, or primary
noxious or designated weeds."21 - The state inspects
to assure that distributors do not sell any "seeds which contain any
noxious weed seeds...or restricted weed seeds which exceeds the tolerance
established..."22 - The exact contents
of feeds23 and fertilizers24 must be registered with the state. - Potatoes must be
graded and inspected before they can be shipped.25 - Citizens who
"suspect that there is upon his premises any contagious or infectious
disease among animals shall immediately report same to the state
veterinarian.26 - Hides and carcasses
must be inspected before being sold.27 - "No person
shall import into Wyoming any poultry, baby poultry, hatching eggs, or
breeding stock..." unless it has been tested for pullorum.28 The state provides the inspector in each
instance. SECOND PENTAD: Bailment: 10If a man delivers to
his neighbor an ass or an ox or a sheep or any beast to keep, and it dies or
is hurt or is driven away, without any one seeing it, 11an oath by
the Lord shall be between them both to see whether he has not put his hand to
his neighbor's property; and the owner shall accept the oath, and he shall
not make restitution. 12But
if it is stolen from him, he shall make restitution to its owner. 13If it is torn by beasts, let
him bring it as evidence; he shall not make restitution for what has been
torn. 14If a man borrows
anything of his neighbor, and it is hurt or dies, the owner not being with
it, he shall make full restitution. 15If the owner was with
it, he shall not make restitution; if it was hired, it came for its hire. Bailment: Any time personal property is entrusted to
another person, there is a bailment.29
These may be for the sole benefit of the bailor who does the lending or leasing,
for the benefit of the bailee who does the borrowing,30 or for mutual benefit.31 Consideration is not required,32 but compensation for repairs is
expected.33 Any act of possession can be evidence of
bailment.34 The bailor owes a duty to warn the bailee of
any hazards which are not readily apparent to the ordinary person.35 The bailee owes a fiduciary duty to
maintain the property in a manner superior to the way they maintain their
own,36 or to use more than
ordinary care with the borrowed property.37
Both the bailor and the bailee owe ordinary care to third persons.38 Larceny is committed the moment any person in
a position of trust asserts any act of ownership over someone else's
property.39 The Covenant Code specifically addressed a
bailee who had been entrusted with property. Wyoming law has expanded this
concept to include bailees and public servants.40 If the property is converted, lost,
or damaged, the bailor has the right to recover the value of the property
plus compensation for loss of its use.41
If the bailment is based on a trust
relationship, or expert standards of care, the bailee becomes a fiduciary.42 If anything entrusted to a fiduciary
is damaged or lost, the courts require the fiduciary to compensate the
bailor, out of his own funds, for the full value of the loss.
"Transactions (by) a fiduciary are presumably fraudulent and void, and
will be stricken down unless their fairness is established by clear and
convincing proof, and the burden of
proof is on the party asserting validity with respect thereto."43 The things which the bailee has possession of
can not be confiscated by his creditors.44
They do not belong to the bailee. They must be restored to the bailor if
possible.45 |
|
Current
Hungarian Law FIRST
DECALOGUE The
Rights of Slaves FIRST PENTAD: Males 2When you buy a Hebrew
slave, he shall serve six years, and in the seventh he shall go out free, for
nothing. 3If he comes in single, he shall go out single; if he comes
in married, then his wife shall go out with him. 4If his master
gives him a wife and she bears him sons or daughters, the wife and her
children shall be her master's and he shall go out alone. 5But if
the slave plainly says, `I love my master, my wife, and my children; I will
not go free,' 6then his master shall bring him to God, and he
shall bring him to the door or the door post; and his master shall bore his
ear through with an awl; and he shall serve him for life. SECOND PENTAD: Females 7When a man sells his
daughter as a slave, she shall not go out as the male slaves do. 8If
she does not please her master, who has designated her for himself, then he
shall let her be redeemed; he shall have no right to sell her to a foreign
people, since he has dealt faithlessly with her. 9If he designates
her for his son, he shall deal with her as with a daughter. 10If
he takes another wife to himself, he shall not diminish her food, her
clothing, or her marital rights. 11And if he does not do these
three things for her she shall go out for nothing, without payment of money. Commentary: Even as they conquered the Carpathian Basin,
Magyars had little concept of slavery.
Some of the Slavs who were conquered in the ninth and tenth centuries
were used as house servants, but even they were absorbed into the population
by the end of the tenth century. The peasants lost the rebellion of 1514, and
the Magyar lords took this
opportunity to develop "the Tripartiutum Policies". These bound the peasants to the land even
more than Constantine's Acts of 305.
It remains that the peasants were still freemen, with all the rights
of citizenship. The concept of slavery never developed in Hungary. Hungary revised its entire legal code in 1867,
and repealed all its feudal laws, including any which pertained to slaves. SECOND
DECALOGUE Crimes Against Persons FIRST PENTAD: Capital Offences 12Whosoever strikes a
man so that he dies shall be put to death. 13But if he did not lie
in wait for him, but God let him fall into his hand, then I will appoint for
you a place to which he may flee. 14But if a man willfully attacks
another to kill him treacherously, you shall take him from my altar, that he
may die. 15Whoever strikes his
father or his mother shall be put to death. 16Whoever steals a man,
whether he sells him or is found in possession of him, shall be put to death. 17Whoever curses his
father or his mother shall be put to death. SECOND PENTAD: Minor Offences 18When men quarrel and
one strikes the other with a stone or with his fist and the man does not die
but keeps his bed, 19then if the man rises again and walks abroad
with his staff, he that struck him shall be clear; only he shall pay for the
loss of his time, and shall have him thoroughly healed. 20When a man strikes his
slave, male or female, with a rod and the slave dies under his hand, he shall
be punished. 21But if the slave survives a day or two, he is not
to be punished; for the slave is his money. 22When men strive together,
and hurt a woman with child, so that there is a miscarriage, and yet no harm
follows, the one who hurt her shall be fined, according as the woman's
husband shall lay upon him; and he shall pay as the judges determine. 23If
any harm follows, then you shall give life for life, 24eye for
eye, tooth for tooth, hand for hand, foot for foot, 25burn for
burn, wound for wound, stripe for stripe. Commentary: The Hungarian Constitutional Court prohibited
the death penalty in 1989.1. The
decision was rendered the year the wall came down, and was based first on the
experience of the political prisoners at Recsk after the 1956 rebellion, and
second on Hungary's wish to meet the standards set by the European Common
Market. In America capital punishment
had been abused along racist lines. 97% of the people executed by the state
were black males accused of crimes against white people. Lynching would make
the numbers even higher. In Hungary the abuse had been along political lines.
almost all of the people executed between the time Rákosi Mátyás came to
power in 1948 and the time Yuri Andropov returned to Moscow in 1962 were
political prisoners. As soon as the opportunity presented itself, the
Constitutional Court prohibited capital punishment. Hungarian law provides a maximum of 15 years
in the penitentiary. A crime which is so heinous that society cannot be
compensated by 15 years imprisonment is viewed as either psychopathic or
sociopathic. These people are put into the insane asylum where they can be
treated. There is a difference between discipline by the police and treatment
for a psychological disorder. Homicide: XII Fejezet pertains to Crimes against
persons, and provision 166 pertains to murder. Any adult of sound mind is considered capable
of murder. No distinction is made by gender or nationality. So also, any
person can be a victim. The same rules apply. Proof of homicide must be beyond a reasonable
doubt. Any intervening circumstance backs the judges off the extreme penalty.
If the victim was already dying; if the victim had prior fatal injuries; or
if the weapon might not have been the fatal one the judges back off. Homicide can be justifiable, misadventure,
negligent, culpable, and felonious. Ø
It
is justifiable if it was done to prevent a forcible crime. Ø
It
is misadventure if it was by accident of pure chance. Ø
It
is negligent if it was from the lack of due care, but without malice. Ø
It
is culpable if it was either the result of criminal negligence or intentional
wrongful conduct. Accessories or abettors are also accountable for culpable
homicide. Ø
Felonious
homicide requires deliberate and specific intent. There must be no mitigating
circumstance. The fatal act must have been committed without physical aid
from anyone else 166(1) sets the sentence for murder is 5-15
years2. If it was
intentional, or felonious, the judge has discretion between 10-15 years3.There are no juries in Hungary. There
are eight specific provisions detailing what constitutes felonious homicide.
Number 7, for example, provides for when one of the victims dies but the
others escape4.
Hostages would be an example of this, so would starting a fire in an
apartment. The fact that there were hostages, or that the fire was arson,
illustrates that the crime was intentional. That makes the murder
intentional. The fact that some of the people survived does not mitigate the
death of the one victim. Serial killers, habitual killers, or mass
murderers get the maximum sentence of 10-15 years. Genocide brings the same
burden. Here again, the provision is broken down into eight specifications
which include kidnapping for killing, terrorism, bombing an airplane, killing
a superior officer, or mutiny.5 Killing with a strong impulse brings 2-8
years.6 Convincing someone, or
aiding their suicide brings up to 5.7
Attempted murder brings a maximum of three
years.8 Negligent homicide brings up to five
years.9 Special provisions are made for what Americans
call Workers Compensation, where injury is caused by a fellow worker or by
the conditions of the job. Inflicting a temporary injury brings a sentence of
1 year, useful public service and a fine.10
Permanent injury brings 3 years,11
a death means 5 years,12 and several
deaths mean 2-8 years.13 If the cause
of the injury was a willful act, temporary injury brings 3 years,14 permanent injury brings 5 years,15 a death brings 2-8 years,16 and several deaths brings 5-10 years.17 If a deadly weapon is involved, such
as when the fellow servant is a police officer, the incident is presumed to
be a willful act.18 Kidnapping: Hungary's kidnapping law was revised in May,
1994. It provides that simple deprivation of freedom means 2-8 years
imprisonment.19 If weapons or a
conspiracy are involved, the penalty is 5-15 years.20 Harm, threat of harm, or death to the
victim means 5-15 years, or life in the asylum.21 If kidnapping is part of a murder, it
brings 10-15 years or life in the asylum.22
A simple plan to kidnap someone brings 3 years,23 but if the plan is not implemented
the penalty is unspecified.24 Someone who fails to report a kidnapping
plan can serve 3 years imprisonment.25
Battery: Insult and slander are part of the battery
statutes in Hungary. An public insult which harms the person's reputation brings
a year imprisonment, useful public service, and an undetermined fine.26 The person must also correct the
slander within 8 days, or suffer civil damages.27 A non-injurious touch makes the culprit
civilly liable.28 "When men quarrel and one strikes the
other with a stone or with his fist and the man does not die but keeps to his
bed" for eight days, the attacker may serve a year in prison, be fined,
or do useful public service.29
The practice is for the imprisonment to be suspended. The state will not take
the initiative against the attacker if the injury lasts less than eight days.30 If the victim is bed bound for more
than eight days, the sentence is three years.31 If the attack was deliberate, but the injury
lasted less than eight days the sentence is 3 years.32 An injury of more than 8 days brings
a sentence of 5 years.33 A permanent
injury, or a crude method of attack, also brings 5 years.34
If the victim dies because of the injury the
sentence is 2-8 years.35 If the injury is accidental, the sentence is 1
year, useful public service and a fine.36
If the damage is a permanent injury the sentence can be five years. Hungarian law has the unusual provision that
if someone fails to aid an injured person they can suffer 3 years
imprisonment.37 An easy example of
this would include a witness who refused to call an ambulance The incident in Ohio where sunbathers sat
and watched a woman drown because they "didn't want to get
involved", would bring criminal penalties in Hungary. If the person who
failed to render aid also caused the accident, the penalty is 5 years.38 Another unique provision pertains to the
failure to care for the elderly. Any Hungarian who does not attend to the
elderly can serve 3 years imprisonment.39
If you neglect your parents, and there is simple harm to them, you are
subject to 5 years imprisonment.40 Incest brings 5-10 years imprisonment.41 Rape brings 2-8 years,42 unless the man marries the victim. If
there is a marriage, the penalty is forgiven.43
Sexual harassment brings 5-10 years if there is no penetration.44 The penalty is again forgiven by
marriage. Sex with a child under the age of 15 brings 2-8 years if the actors
are relatives,45 and 1-5 if by
a stranger.46 The measure of damages in Hungary takes two
unusual turns. First, socialized medicine eliminates the element of damage on
which American law relies most heavily. In America, the beginning of any
settlement negotiation is the amount of the medical bills. The assumption is
that someone who spends a week in the hospital because of an injury is hurt
worse than someone who only spent a few hours in the emergency room. Some one
with $29,000 worth of medical specials was more seriously injured than
someone with only $2,900 in bills. Here, there are no bills. The entire
system relies on lost time and the victim's description of the injury and
pain. The second unusual element is that the victim's immediate family can
recover for the time and expense they incur in visiting him. In America, an
item like that would be at the discretion of the insurance adjuster. If the
family's bills were reasonable, and they were essential to getting the claim
paid, the adjuster could make the allowance for them in the total amount of
the settlement. Abortion: Abortion is legal under the Hungarian heath
system. It is a decision between the
doctor and the patient until the moment the child takes its first
breath. In Hungary, life is breath. Hungarian law treats back room abortion as
murder, and sentences the abortionist to three years if it is done as a
business, or if the woman was opposed to the abortion.47 If the abortion is done in a crude
manner, or injures the woman, the abortionist gets 2-8 years.48 Anyone who aborts their own child
gets a year in the penitentiary, useful public service, and an fine
based on their past record and their
ability to pay.49 THIRD DECALOGUE Domestic Animals FIRST PENTAD: Injuries by Animals 26When a man strikes the
eye of his slave, male or female, and destroys it, he shall let the slave go free
for the eye's sake. 27If he knocks out the tooth of his slave,
male or female, he shall let the slave go free for the tooth's sake. 28When an ox gores a man
or a woman to death, the ox shall be stoned, and its flesh shall not be
eaten; but the owner of the ox shall be clear. 29But if the ox has been accustomed to gore in the
past, and its owner has been warned but has not kept it in, and it kills a
man or a woman, the ox shall be stoned, and its owner also shall be put to
death. 30If a ransom is
laid on him, then he shall give for the redemption of his life whatever is
laid upon him. 31If it
gores a man's son or daughter, he shall be dealt with according to this same
rule. 32If the ox gores a slave, male or female, the owner shall
give to their master thirty shekels of silver, and the ox shall be stoned. SECOND PENTAD: Injuries to Animals 33When a man leaves a
pit open, or when a man digs a pit and does not cover it, and an ox or an ass
falls into it, 34the owner of the pit shall make it good; he shall
give money to its owners, and the dead beast shall be his. 35When one man's ox
hurts another's so that it dies, then they shall sell the live ox and divide
the price of it; and the dead beast also they shall divide. 36Or
if it is known that the ox has been accustomed to gore in the past, and its
owner has not kept it in, he shall pay ox for ox, and the dead beast shall be
his. 22:1If a man steals an ox
or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and
four sheep for a sheep. He shall make restitution; if he has nothing, then he
shall be sold for his theft. 4If the stolen beast is found alive
in his possession, whether it is an ox or an ass or a sheep, he shall pay
double. 2If a thief is found breaking in and is struck so that he
dies, there shall be no blood guilt for him; 3but if the sun has
risen upon him there shall be blood guilt for him. Commentary: There is little distinction between ox, pit,
grazing, and fire in Hungarian law. When a dog bites someone the owner is criminally
liable.1 If the dog is trained
or incited to attack and kill someone, the owner is punished for the murder.2 The owner is also liable if the
animal simply makes life miserable for another person. In a specific example,
a dog bite caused the victim to lose his sense of smell. Ten years later the
victim still won 70,000 forint ($700.00) for the loss. This was true even
though the victim couldn't produce a bill. If a dog injures livestock, the
owner is liable for the damages.3 Anyone who harbors a wild animal on their
property is strictly liable for the injuries it causes to people or the
damages it causes to property.4 So
also, livestock owners are liable for any damage or injury caused by their
animals. They must control their pets and their livestock. The law provides
that the victim can not confiscate the livestock if the damages are paid. If
they seize the animal they must treat it with ordinary care.5 The concept of strict liability in
Hungary allows the defendant to present exculpating evidence. The owner may be liable, but the court
will listen to mitigating circumstances. FOURTH DECALOGUE Property FIRST PENTAD: In
General 5When a man causes a
field or vineyard to be grazed over, or lets his beast loose and it feeds in another
man's field, he shall make restitution from the best in his own field and in
his own vineyard. 6When fire breaks out
and catches in thorns so that the stacked grain or the standing grain or the
field is consumed, he that kindled the fire shall make full restitution. 7If a man delivers to
his neighbor money or goods to keep, and it is stolen out of the man's house,
then, if the thief is found, he shall pay double. 8If the thief is not found, the owner of the house
shall come near to God, to show whether or not he has put his hand to his
neighbor's goods. 9For every breach of
trust, whether it is for ox, for ass, for sheep, for clothing, or for any
kind of lost thing, of which one says, `This is it,' the case of both parties
shall come before God; he whom God shall condemn shall pay double to his
neighbor. SECOND
PENTAD: In Cattle 10If a man delivers to
his neighbor an ass or an ox or a sheep or any beast to keep, and it dies or
is hurt or is driven away, without any one seeing it, 11an oath by
the Lord shall be between them both to see whether he has not put his hand to
his neighbor's property; and the owner shall accept the oath, and he shall
not make restitution. 12But
if it is stolen from him, he shall make restitution to its owner. 13If it is torn by beasts, let
him bring it as evidence; he shall not make restitution for what has been
torn. 14If a man borrows
anything of his neighbor, and it is hurt or dies, the owner not being with
it, he shall make full restitution. 15If the owner was with
it, he shall not make restitution; if it was hired, it came for its hire. Commentary: Bailment: Bailment law in Hungary is stronger than
either Biblical law or Wyoming law.
When something is entrusted to someone they are strictly liable for
anything that happens to it. There is
essentially no negotiation or argument. In Wyoming fiduciary duty is the only
example of a presumption of negligence. In Hungary it's strict liability. The
Hungarian concept is "responsible watch".6 If anything happens to the entrusted
property the bailee must pay. |
|
CONCLUSIONS When this paper was bowed in the Preface, its
target was to find whether Charles F. Kent was right when he said that
"Israel's codes ...represent the most important corner-stones of our
modern English laws and institutions."1
He recommended that these codes be traced from their genesis as primitive law
to the modern institutions.2 The purpose of this paper, then, has been to
learn whether 1993 Wyoming law, and 1996 Hungarian law, are consistent with
the earliest code found in the Old Testament. This is the "Covenant Code" in Exodus which King
David administered in 1000 BCE. The approach has been to first examine the
Biblical and Talmudic development of the Covenant Code through the eyes of George
Horwitz, and then to examine the current law through the eyes of Monroe
Smith. Each verse in Exodus 21:1-22:15 has been examined under Wyoming and
Hungarian statutes and cases. The answer has been much as Kent, Smith, and
Toynbee each said it would be. The
men who made the law were originally priests. The Christian priests who made
the law had read their Old Testament as scripture, and its laws tended to be
applied, and perpetuated. Justice Oliver Wendell Holmes repeats this dynamic
in the first of his lectures On Common Law & other writings:3 "A very common phenomenon, and one very
familiar to the student of history, is this. The customs, beliefs, or needs
of a primitive time establish a rule or formula. In the course of centuries
the custom, belief, or necessity disappears, but the rule remains. The reason
which gave rise to the rule has been forgotten, and ingenious minds set
themselves to inquire how it is to be accounted for. Some ground of policy is
thought of, which seems to explain it and to reconcile it with the present
state of things; and then the rule adapts itself to the new reasons which
have been found for it, and it enters a new career. The old form receives a
new content, and in time even the form modifies itself to fit the meaning which
it has received." Kent's profile of Israeli law starts with the
presumption of progressive revelation.
At this point I have to deviate from the method I set out in the
Preface. Some secondary information is critical. The Israeli understanding of
"truth" was that it came to them, through the Spirit Eye, from an
external source. This is the essence
of progressive revelation. Jewish
thought refers to this as "chok", the unexplained knowledge from
God, and "torah", the chok which has been grasped and implemented. Horwitz reflects the same thing: "the
Talmud and Rabbinical developments represented not a decline from the sublime
teachings of the Bible and the Prophets, but rather a carrying forward of
those very teachings."4 The
Old Testament laws relied on a known God and a known goal. This characteristic of Old Testament and
Talmudic law was lost when Paul shook the dust off his sandals and took
Christianity to the gentiles.5 The gentiles had no sense of Spirit Eye,
and no basis in an idea that truth and law were revealed from an exterior,
third source. Some gentiles, like Plato believed that truth was a priori and
internal. Others joined with Aristotle that it was objective and
external. No where was there a ready
reference that truth came through the Spirit Eye. The idea of chok was
lost. The development of the law
from that point reflects an agnostic,
inquiring attitude. Monroe Smith refers to this in his discussion of
"the law makers" and
"the law finders". Neither
the feudal assumption of a priori truth nor the Reformation assumption of objective reality allow for
revealed truth. The scripture became
a primary, rather than exclusive, source for the law. During feudal times the priests were the law makers and law finders. The precedents they set have controlled
law from that day to this, and they were in constant reference to the law in
the scripture. A spectacular example happened in 1867 broke
with Austria. To govern its internal affairs, Hungary repealed all its old
laws and referred back to the Corpus Juris which Justinian had developed in
537. Believing that they were
cleansing back to Roman law, they actually referred to law which reflected
over 200 years of Christian, priestly, refinement. The best evidence of this is that the Hungarian law on
bailment, a very stable concept in human dynamics, is almost verbatim with
the Talmudic and Wyoming law on the same point. There are some three differences between the
Covenant Code and current law which require special note. The first of these is the Israeli
assumption that everything was compensable. The Israelis had little use for
prisons, especially for other Israelis. Every crime, tort, or breach
warranted either death, compensation, or enslavement. Throughout the first
pentad of the second decalogue, the death sentence is imposed for every
serious crime. There is no example of imprisonment. Beginning with the second
pentad, the penalty is compensation. If the wrongdoer could not pay the
award, the plaintiff was responsible for taking them into his care as `Eved
`Ivri. They would work not as slaves, but as indentures, for as much as seven
years. Then they would go free with their new skill to serve as a member of
society. In current law, the victim has been replaced by the state. The state
assumes custody of certain wrongdoers and holds them in penance. The state
also assumes responsibility, through programs such as schools, and social
programs, to train these people in saleable skills. The intervention of the
state has also reduced the need for capital punishment. Psychopaths or
sociopaths who are too dangerous to be returned to society can now be held in
custody by the state. In 1992 Wyoming executed its first felon in 16 years.
The argument for his execution was that he was able to perpetrate another
murder from inside the prison walls. The prison was not capable of protecting
society from him. Hungary has eliminated capital punishment entirely. Restitution to the victim is also supposed
to be a function of he state. Civil actions for damages are provided as an
alternative to restitution. The second distinction is the Jewish concept
of hatra'ah. The wrongdoer had to be warned twice that what they were about
to do was wrong. This is no longer the law. Now, the burden to prove intent rests
with the state, regardless of any warning to the wrongdoer. Even the Miranda
rights run to protection against self incrimination rather than
culpability. There is no duty to warn
immediately before the act to establish criminality. The shadow of hatra'ah can be found in the
social system of training. Before a
citizen can be licensed they must receive certain training. This training, which is recognized by the
state, can be viewed as the shadow of the hatra'ah. Once again the state intervenes. Training, education, licensing, and occasionally certification
run to the state. This is not the way
things were done in Israel. The oaths before YHWH have been replaced by
proofs before judge and jury. Although the witnesses and suspects are sworn,
possibly before God, the proof is left to the judge and jury rather than to
the horns of the alter. The measure of restitution has been amended to
reflect both contingency fees and insurance. The requirement that an
assailant must "pay for the loss of his time, and shall have him
thoroughly healed" now includes damages which the rabbis would never
have contemplated. The vengeance which lex talionis was intended to
eliminate, has been reconfigured from physical to monetary violence. The size
of the awards for personal injury are at least three times the value of the
special damages. This is also
reflected in property damage where compensation can be measured as the
potential benefit of the bargain rather than just as the actual losses. The
offset in this distinction is the modern idea of comparative negligence. The
measure of damages is no longer based on the strict liability theory shown in
the third and fourth decalogues. The plaintiffs must now account for their
own acts which contributed to the injury, and their recovery is reduced by
that amount. Western Americans have a unique attitude
toward their cattle. Cattle have the right of way on the highways, and people
are called upon to protect themselves from strays. Sheep and dogs, which can bother cattle, must be
contained. If they are found
attacking the cattle, or grazing the grass too low, the cowboy can eliminate
them as a nuisance. Other than these four distinctions, the
spirit, and even the letter, of the Covenant Code is almost entirely
consistent with the spirit and the letter of current law in both Wyoming and Hungary. Two totally distinct Western societies have laws which are reflective
of a common source of reference. The
initial statement is that this source is Roman law. That is only partly true.
Little Western law reflects Roman law before 305 CE when the Christian
courts were legitimized. The Corpus Juris
on which Hungary relies was written under the supervision of a Caesar
who was also head of the church, and who used priests as his judges. The law which developed in the British
Empire was explicitly based on scripture, and penalties were often church
penalties.6 Roman law and even Babylonian law can be
found in Western law only if it is
consistent with the priests' view of the scripture. Laws that were inconsistent were set aside.7 In addition to the explicit reference to
scripture which legislators and jurists made before the Reformation, there is
the socialization process of the law makers and the law finders within the
society. The a priori sense of rightness and wrongness - of manners and
morals - is based on an implied reference to scriptural values.
In Israel the law provided for abortion on demand. The child did not become an
"ish" until it took its first breath. Abortion on demand now exists again in Hungary, and in Wyoming
for the first trimester. The reasons given by the legislature for abortion
after the first trimester are very liberally construed in practice. The
law in bailment is almost verbatim in all three societies. The duties and penalties for negligence
are remarkably consistent. This
exists even though Hungary and Wyoming had little communication when these
laws were being developed. They have
little communication even now. The point is that "Israel's codes represent
the most important corner-stones of our modern laws and institutions and
therefore challenge and richly reward the study of all legal and historical
students."8 |
SOURCES
Format The first endnote to each Decalogue in the “Biblical
and Talmudic Development” attends to the translators' struggles, the cross
references, and the marginal notes found in sources like The New Oxford
Annotated Bible with Apocrypha, Wilmore's New Analytical Reference
Bible, Benson's The Holy Bible Containing The Old and New Testaments,
Harper Study Bible, The Amplified Bible, The Interpreter's
Bible, and A Catholic Commentary on Holy Scripture. This frees the main text for both these
sources, and every source available to me on the subject. Disclaimer
It is important to note that there is a great
deal of Talmudic law which never found its way into our system. Monroe Smith
speaks to this in his "Elements of the Law". I do not discuss the
parts of Jewish law which were not carried forward. That is not the subject
of the book. Nor is the impact of Roman Law. I will remark only that the
Roman Law which most affected our system came from Justinian's Corpus Juris.
This was compiled some 537 years after Christ. The impact of the Torah on
Roman law was substantial. Many judges were priests, even before Constantine
recognized the church in about 305 CE. A
technical detail is also important here. A book like this should travel like
an arrow bowed in the Preface and targeted in the Conclusion. Ancillary information
must be excluded from the main body of the text. Stated another way, the
author must assume that the reader has certain information. On the previous
page alone I have mentioned that Justinian compiled the Corpus Juris, and
that Constantine recognized the church. Both statements assume certain
knowledge on the part of the reader.
Other information must be relegated to "notes" since it is
important, but not part of the subject matter. It is difficult to understand
the Jewish system without some explanation of numerology, or the concept of
chok and torah. Yet, since these concepts are not specifically on point to
the text, they have been tucked into endnotes. Long and eloquent quotes from
Monroe Smith have been painfully removed from the text. The reader is
implored to take notice of the notes in order to get a full appreciation of
what is stated and what is implied. Some readers have remarked about how many
"sources" group together. They are correct. When I am discussing
Kent, for example, he is my primary resource. There is one instance where 16
sources refer back to lines in his text. The reason is that I am discussing
the provisions of his text. Another criticism is that I do not include
specific authors, such as Carl Barth. The reason is that Carl Barth did not
write on the development of Jewish Law. Acknowledgements Specific help was
given in Section I by conservative rabbis, such as Thibout Berkly of Albany,
NY and Miskolc, Hungary, and I would like to thank them for that. I would
also like to thank Chief Justice C.Stuart Brown of Cheyenne, Wyoming for his
very helpful comments regarding Wyoming law, and Dr. Tamasek Kálmán of
Miskolc, Hungary, and Fûlóp Sándor of Budapest for their instruction in
Hungarian law. |
[1]Charles F. Kent, Israel's
Laws and Legal Precedents, p. vi.
[2] Kent, op.cit.,
chapter 2 generally.
[4] Ibid., p.
3.
[5] Ibid., p.
6.
[6] Roger Thomas, The
Complete Conquest: A History of the Jews, p. 81.
[7] Kent, op.cit., p.
6.
[8]Abraham left Mari
for Canaan in about 1900 BCE. The Babylonians conquered the kingdom of Mari in
about 1700 BCE, and the Code of Hammurabi was written in 1775 BCE. Werner
Keller, The Bible as History, Chapter 5. Joseph would therefore have
been in Egypt when the Code of Hammurabi was written, but it would have been
the working model among the Ugaritic city states when Joshua led the Rachel
tribes into Canaan. Thomas, op.cit., p. 63. Chaim Potok discussed the
importance of the suzerainty treaty as a model for the Israeli codes. This same treaty structure was used in the
Code of Hammurabi. Chaim Potok, Wanderings, p. 103 & 107.
[9] Kent, op.cit.,
chapter 3 generally.
[10] Ibid., p.
18. Kent did not refer to these as J1 and J2 codes. One author in The
Interpreter's Bible, at vol 1, p. 1076, attributes Exodus 34 to J1 and
Exodus 21:1-22:17 to J2. A different author, vol 1, p. 190, at attributes both
to JE.
[11] The New Oxford
Annotated Bible with the Apocrypha, p. 93.
[12] Kent, op.cit., p.
23.
[13] These laws reflect
a situation after Israel's invasion of Canaan, when prevailing laws were
borrowed and adapted to the covenant tradition. The New Oxford Annotated
Bible with the Apocrypha, p. 93.
[14] Kent, op.cit., p.
28.
[15] Kent attributes
the pentads to five fingers on a hand. Ibid., p. 29. He does not address
the importance of Jewish numerology. Naomi Albright's Numbers and Colors of
the Alphabet reports that the number 5 signifies wisdom, power and
strength. The number 10 signifies perfection. Conservative rabbis agree with
her in this, and further state that, in Hebrew, the numbers 5 and 10 are the
first letters of the names of God. Very briefly, 1 reflects one God; 2 reflects
beginning, and is the beginning letter of the Bible in Hebrew; 3 reflects chok
and especially torah as discussed in endnote 37; 4 reflects free will; 5
reflects wisdom, and is the first letter of one of the names of God, 6 reflects
incompleteness because God created the world in 6 days then rested before
modifying it; 7 reflects perfection of creation; 8 reflects life; 9 reflects
good; and 10 reflects perfection of all things including wisdom. It is important to note that numbers existed
in human vocabulary long before letters, and each letter was attributed a
numeric value.
[16] Ibid., p. 26.
Kent recites nine decalogues, but only the first four are contained within the
Covenant Code.
[17] Jewish tradition
refers to Elijah, Elisha, etc. as the Former Prophets and Amos, Micah, etc as
the Latter Prophets. The prophets discussed here are those who had lived before
621 BCE.
[18] Ibid., p.
31.
[19] Ibid., p.
37. The Ezekiel Code was apparently written about 597-586 BCE.
[20] Ibid., p.
37.
[21] Ibid., p.
41.
[22] Ibid., p.
40.
[23] Exodus 21:1-22:19
is referred to as "The Covenant Code" "because it is set within the
context of the account of the sealing of the covenant." The
Interpreter's Bible, vol 1, p. 844. It is also cited as the "book of
the covenant" in Exodus 24:7. Harper Study Bible, p. 112. The
Harper Study Bible goes on to say "In the era of the Christian church
many of the Pentateuchal regulations are inapplicable. Yet the underlying
principles of justice and fairness and equality remain ever valid and
foundational for sound jurisprudence." Ibid., p. 112.
[25] George Horwitz, The
Spirit of Jewish Law, p. ix.
[25] Ibid. p.
ix.
[25] Roger Thomas, The
Complete Conquest: A History of the Jews, p. 49.
[25] Max I. Dimont, Jews,
God and History, p. 264-266.
[25] Horwitz, op.cit.,
p. vii.
[25] Ibid., p.
8.
[25] Horwitz
consistently refers to Rabbi Shlomo Itzhaki as Rashi, and to Moses ben Maimon
as Rambam rather than Maimodes. I have respected his position.
[25] Ibid., p.
viii.
[25] Ibid. p. 1.
[25] Ibid., p.2.
This attitude is most clearly set out in Exodus 34:6-7, but is echoed in
Numbers 14:18; Nehemiah 9:17&31; Psalms 103:8; Jeremiah 32:18; and Jonah
4:2.
[25] Ibid., p.
5.
[25] Ibid., p.
6-7. Exodus 18:20.
[25] Ibid., p.
5. "Apodictic law" came from God, and "casuistic law" came
from cases. The Nelson Study Bible, p. 137.
[25] Ibid., p.
9. The Tradition of the Elders was carried forward into Christian society under
Mark 7:3-13. Israel was not a society which came together under a social
compact. It was chosen by God, and its
laws and social structure were also directed by God. Thomas, The Complete
Conquest: A History of the Jews. Conservative rabbis discuss how God gave
Moses a series of unexplained commands which he and the Jews had to accept on
faith. This unexplained law is called chok. The logical, human explanation of
chok are torahs.
[25] Ibid., p.
9.
[25] I know ethics as
often as I see them.
[25] Max I. Dimont, Jews,
God and History p. 165-168. Before
35 BCE the Sadducees and the Rabbis had forbidden the Midrash, Mishna, or
Gemara to be written down. This edict
stood until about 600 CE when they allowed the Talmud to be written for fear
that war and slaughter would eliminate all of the memorized texts. See also
Thomas, op.cit., p. 95.
[25] Horwitz, op.cit.,
p. 4.
[25] Thomas, op.cit.,
p. 97; Dimont, op.cit., p. 168.
[25] Horwitz, op.cit.,
p. 14.
Initial
Commentaries
When you buy a Hebrew slave, he shall serve
six years, and in the seventh he shall go out free, for nothing.
Nehemiah 5:5
illustrates that Hebrews could sell either themselves or their children -
Exodus 21:7 - to other Hebrews in payment of a debt. Exodus 22:3 illustrates
that they could be sold into slavery for a fine they couldn't pay. 2 Kings 4:1
provides an example of a creditor seizing children after their father's death. A
Catholic Commentary on Holy Scripture, p. 220.
Genesis 18:15
illustrates that Jacob, who didn't have enough for Rachael's dowry, could only be bound as a servant for seven
years. He was tricked into doing it twice, but only for seven years.
The Lord had the
power to put all of Israel into bondage for disobedience. Judges 2:44 &
10:7; Isaiah 50:1.
Exodus 21:32
specifies, "If the ox gores a slave, male or female, the owner shall give
to their master thirty shekels of silver". This sets the value of a six
year slave at thirty shekels. The Interpreter's Bible, p. 994.
Apparently the
custom of selling families into slavery to pay debts was still in force at the
time of Matthew 18:25. Paul used the allegory of slave redemption in 1
Corinthians 6:20.
The Leviticus 25:42
prohibition against selling Hebrews as slaves to foreigners was not yet in
place when Simeon convinced his brothers to sell Joseph to the Midianites in
Genesis 37.
Leviticus 25:39
prohibits a Hebrew from making another Hebrew serve as a slave. He is a hired
servant. Deuteronomy 15:18c sets his wage as half that of a hired servant. A
Catholic Commentary on Holy Scripture, p. 220. Exodus 12:44 required that
he eat the Passover with the master's family. Conservative rabbis dissent from A Catholic Commentary on
Holy Scripture that these servants were not "hired".
In contrast,
Leviticus 25:44-46b allows foreigners to be purchased as slaves. These foreign
slaves became property which may be passed from generation to generation. A
Catholic Commentary on Holy Scripture, p. 220.
Exodus 23:10-11
sets the sabbatical year of release and jubilee for the sake of the poor; in
Leviticus 25:1-7 it is for the fallow of the land; in Leviticus 25:8-55 and
Deuteronomy 15:1-11 it is for the remission of debts. Deuteronomy 31:10 sets
the end of the seventh year, at the time of the feast of the booths, as the
year of release. Jeremiah 34:14 provides that the Year of the Jubilee was at
the end of six years, not every sixth year. The master got six full years of
service. A Catholic Commentary on Holy Scripture, p. 220.
Deuteronomy
15:13-14 requires that when the slave was released he was to be furnished
"liberally out of your flock, out of your threshing floor, and out of your
wine press". A Catholic Commentary on Holy Scripture, p. 220.
3If he comes in single, he shall go out
single; if he comes in married, then his wife shall go out with him.
This verse may have
read "with his body" rather than "by himself". In modern
vernacular either translation would have meant "single".
"If the person
sold for a slave had a wife, and she, either by choice or compulsion,
accompanied him; she must not be detained when her husband was liberated. Many
expositors state that the person, who bought a married man for a slave, was
bound to maintain his wife and children during the term of his servitude: but
if so, it might be reasonable to suppose that he had the advantage of their
labor." Scott, The Holy Bible, p. 266.
4If his master gives him a wife and she bears
him sons or daughters, the wife and her children shall be her master's and he
shall go out alone.
"If the person
sold had no wife, or his wife did not accompany him, and his master gave him
one of his female servants to wife during his servitude; she was not set at
liberty with him at the end of the six years, and the children were considered
as the property of the master. It is generally thought that an Isrealitish
woman could not on any account be thus disposed of; and that the slaves thus
given in marriage for the time, were Gentiles. Yet this can hardly be supposed,
as the prohibitions against intermarriages with the heathen were so express. It
does not appear, that children born in slavery, were entitled to liberty, at
any time before the year of jubilee: of these there might be women of Hebrew
extraction, to be given as wives for the time to Hebrew slaves; and others,
originally of Gentile extraction, might be proselyted to the religion of
Israel." Scott, op.cit., p. 266. Conservative rabbis dissent from Scott's
use of "property" and insist that it was the master's responsibility
to raise the children. The gentile wife could remain gentile, but the children
were Jews. The man was allowed to go free because the marriage was not valid.
5But if the slave plainly says, `I love my
master, my wife, and my children; I will not go free,'
Deuteronomy
15:16-17 has almost identical provisions.
6then his master shall bring him to God, and
he shall bring him to the door or the doorpost; and his master shall bore his
ear through with an awl; and he shall serve him for life.
Bishop Pillai
devotes chapter 6 of Light Through an Eastern Window to Oriental
justice. He describes three kinds of "judges". First is the Daysman,
found in Job 9:32-33. In modern Western society these might be referred to as
arbitrators. Second is the "elder of the gate" or "master of the
assembly" as in Deuteronomy 22:15 and Ecclesiastes 12:11. Under the
Napoleonic system of Continental Europe these might be called notaries. They
were elected officials who certified that legal details were properly done.
They might be considered Administrative Judges under the English system.
Finally came the "judges" who were appointed by the government and
decided serious cases on the merits. This third kind of judge is referred to in
1 Corinthians 6:1-5. The slave's certification would have been before the master
of the assembly.
Conservative rabbis
dissent from this analysis in three particulars. First, what Pillai suggests
may have been true in his home in India, but it wasn't the case in Israel.
Second, Moses was the only arbitrator, all the others were judges. What Pillai
describes as Daysman were small claims judges in Israel. The Judges of the Gate
served until the Exile. Ezra 7:25 discusses the selection of 72 Elders of the
Assembly upon the return from Exile. 75% of these Elders of the Assembly were
prophets.
A serious dispute
arises between Pillai and the rabbis over the translation of Ecclesiastes
12:11. Pillai quotes, on page 75;
"The words of
the wise are as goads, and as nails fastened by the masters of the
assemblies which are given from one shepherd."
The Revised
Standard Version quotes the same text;
"The sayings
of the wise are like goads, and like nails firmly fixed are the collected
sayings which are given by one shepherd."
The two
translations raise the question of who collected the sayings. Were they collected
specifically "by the Masters of the Assemblies" or were they just
generally collected?
A literal reading
of the Revised Standard Version indicates that Moses acted as a chieftain
during the beginning of the Exodus, and tried to settle every dispute
personally. Exodus 18:13-18; Numbers 11:17; and possibly Deuteronomy 1:9; The
New Oxford Annotated Bible with Apocrypha, p. 90. David fell into this same
difficulty. 2 Samuel 15:2.
Jethro reorganized
legal administration by having Moses appoint men of upstanding character as
judges beginning with units of 1,000 households and then all the way down to
units of only 10 households. In Exodus 18:21-22a, Numbers 11:16, and
Deuteronomy 16:18 Moses appointed these elders; in Deuteronomy 1:13 the elders
were elected as both judges and commanders. They were to handle the routine
cases. Numbers 11:16-17. They were also the administrators. Numbers 25:5-8.
They had jurisdiction over both Hebrews and the aliens who were among the
tribes. Deuteronomy 1:16.
Moses was to
personally decide cases which had no legal precedent, and he was to do this by
seeking an oracle from God. Exodus 18:21-23. The priests participated in the
decision making, but not in the investigation of the facts. Apparently the
distinction between "issues of fact" and "issues of law"
was already developing. Deuteronomy 17:9; 19:17-18.
By the time of
Deuteronomy 1:17 Moses was specifically an appellate judge.
Moses also served
as the Daysman between the nation and God. Exodus 18:19 & 33:11; Numbers
11:2&11. This role of Daysman to God was assumed by Christ in John 14:6.
Conservative rabbis
agree that Moses was the only Daysman between Israel and God. They disagree
that he personally acted as the judge among the people. He used Aaron as the
judge, and heard suggestions from Jethro about judicial reorganization as to
smaller claims.
Masters of the
Assembly and Judges were often called "gods", and that may have been
the original translation of verse 6a, "shall bring him to the Masters of
the Assembly". By the time of the Septuagint the translation was
"tribunal of God". "The sense seems evidently to be, that the
master was to bring his slave to the temporal judges, that they might take
cognizance of the case, and that the agreement, being publicly and solemnly
confirmed might be irrevocable." Benson, The Holy Bible, p. 232.
The word "God" is used in Exodus 22:8&9, but "judge" is
used in Exodus 21:22. All three instances, Exodus 21:6, 21:22, and 22:8&9,
involve tort recovery. Since Exodus 21:6a involves an oath, "God" may
have been the correct translation.
The judges who
ruled between Moses and the monarchy were apparently charismatic leaders like
Jephthah. Judges 11:29. Samuel's attempt to make the role hereditary failed. 1
Samuel 8:1. By the time of 2 Samuel 15:2, the society was settled enough that
Absalom could rise every morning and stand at the gate, offer to decide the
people's suits, and complain that David - the warrior king - had not
re-established a judiciary system like Jethro's. Solomon - who was born to the
purple - promptly established a system of administrative and judicial
districts. 1 Kings 4:7-19. These districts were still largely in tact at the
time of the Exile. One of the first items of business for the prophets was the
reform of the judges and counselors. Isaiah 1:26; Zephaniah 3:3. Those who returned from the Exile complied
with the systems of royal administration regarding non-religious matters.
Nehemiah 13:9. Religious matters were adjudicated in the Sanhedrin. Matthew
26:57-75.
The ceremonial act
had to be performed at the sacred doorpost. This is the first evidence in the
Covenant Code that swearing before God was both morally and legally binding. The
New Oxford Annotated Bible with the Apocrypha, p. 94. According to Exodus
12:12, only God could act as the enforcer, so the judges performing their
duties were acting on behalf of God. The door post and the lintel were the holy
places of the house. During the
Passover in Egypt, blood - the deity's portion of the sacrifice - was smeared
on the doorposts and the lintel as protection against the destroyer. Ibid.,
p. 80. In Deuteronomy 6:9 the commandment to love the Lord was to be written
upon the door post. The existence of a door post is the first clear indication
of a settled, rather than nomadic community. Psalm 40:6 used the boring of the
ear as an example of the voluntary commitment of the Hebrews to YHWH. The ear
indicates obedience; the nailing to the doorpost meant permanent attachment. A
Catholic Commentary on Holy Scripture, p. 220. Exodus 22:8 and 22:28
re-emphasize the importance of the oath. Conservative rabbis point out that the
hole was bored in the man's ear as suffering for not trusting God. The man had
placed his life in human hands.
Deuteronomy 15:17
specifically provides that the awl was "thrust through his ear and into
the door".
"We find from
Juvenal and Petronius that this continued to be a custom in Syria and Arabia
many Ages after this. And it fitly represented the servant's perpetual
obligation to abide in that house and there to hear and obey his master's
commands. Psalms 11:6." Benson, op.cit., p. 232.
This is the only
example we have of marking Israeli slaves. Babylonian slaves had their hair
shaved in a specific manner. The Interpreter's Bible, p. 995.
"For life" meant as long as the slave lived or until the year of jubilee. Benson, op.cit., p. 232; Scott, op.cit., p. 266.
[25] 7 When a man sells his daughter
as a slave, she shall not go out as
the male slaves do.
Nehemiah 5:5 illustrates
that daughters could be sold to pay debts and taxes.
By the time of
Deuteronomy 15:17, female slaves were on the same level as male slaves. They
were allowed to "go out as the male slaves do."
8If she does not please her master, who has
designated her for himself, then he shall let her be redeemed; he shall have no
right to sell her to a foreign people, since he has dealt faithlessly with her.
8a may have read
"be evil in the eyes of her master". Wilmore's New Analytical
Reference Bible, p. 72.
"Please not
her master" did not necessarily mean sex. Scott, op.cit., p. 266. In
Genesis 28:8 Esau married Ishmael's daughter, Mahalath, because he knew that
Canaanite women "did not please" Jacob. In Judges 14:3 Samson sought
to marry Timnah because none of the daughters of his kinsmen
"pleased" him.
8b "Designated
her unto himself" appears to imply concubinage. Benson, op.cit., p. 232.
Genesis 20:17 does
not specify whether the slave women who bore Abimelech's children were Hebrews.
Abraham's concubine, Hagar, is identified as an Egyptian in Genesis 21:12.
Jerubbaal's son Abimelech appears to have been born from an Israeli concubine.
Judges 9:18. The concubine in Judges 19:19-30 was probably Israeli.
8c "then he
shall let her be redeemed" was broadly
construed. Female
slaves could be redeemed by any one, usually a relative, who would pay the
purchase price. Benson, op.cit., p. 232. Conservative rabbis dissent from
Benson's understanding. They assert that she must be redeemed. She can
not be taken advantage of. The master must liberate her, forgive the debt and
refund the purchase price. He was not allowed to keep her in a servant
condition.
8d "he shall
have no right to sell her to a foreign people" meant that she could not be
sold out of the faith. This was partly
because gentiles would keep her indefinitely which the Israelis could not do.
Benson, op.cit., p. 232.
8e "since he
has dealt faithlessly with her" may also have read "so that he has
not designated her". Harper Study Bible, p. 113. The master may
have dealt deceitfully with her by promising her - or encouraging her to
entertain ideas of - marriage which he then broke. Benson, op.cit., p. 232.
Malachi 2:11-15 compares this with infidelity both in marriage and to God.
9If he designates her for his son, he shall
deal with her as with a daughter. 10If he takes another wife to
himself, he shall not diminish her food, her clothing, or her marital rights. 11And
if he does not do these three things for her she shall go out for nothing,
without payment of money.
Any infraction of
the three rights, food, clothing, or marital, set the slave girl free. If a
free citizen was enslaved under the Code of Hammurabi or Assyrian Law, they
only served three years. Such slaves had no rights however, and belonged
entirely to their master. Both of these codes, and even the milder Hittite Law,
impose various forms of mutilation on slaves for offences for which a free
citizen suffered a fine. The more humanitarian character of the Mosaic Code is
evident. A Catholic Commentary on Holy Scripture, p. 220. Conservative
rabbis emphasize that the girl had all marital rights, not just sex.
The requirement
that sexual attention be provided to the concubine was continued in 1
Corinthians 7:5, which mandates that wives and husbands should not refuse each
other "lest Satan tempt you". Harper Study Bible, p. 113.
Benson, writing in 1854, referred to "her marital rights” as "due
benevolence". Benson, op.cit., p. 232.
[25] Will Durant, Our
Oriental Heritage, p. 488.
[25] Newsweek,
April 28, 1992.
[25] Durant, op.cit.,
p. 19-20.
[25] Ibid., p.
20.
[25] Ibid., p.
20.
[25] Ibid., p.
20.
[25] Ibid., p.
20.
[25] Ibid., p.
159.
[25] Ibid., p.
159.
[25] Ibid., p.
125.
[25] Ibid., p. 229. The Israeli
limit was six years. The language of Deuteronomy 15:18, "double the hire
of a hireling", may be an acknowledgment of this discrepancy. The
Interpreter's Bible, p. 994.
[25] This idea that a
slave could continue to own property is illustrated in 1 Samuel 9:6 in which
Saul became indebted to a slave for information and for a loan. The
Interpreter's Bible, p. 996.
[25] Durant, op.cit.,
p. 229.
[25] Ibid., p.
275.
[25] Ibid., p.
292.
[25] Ibid., p.
337.
[25] Ibid., p.
337-338.
[25] Durant is quoting
Leviticus 25:14c. There are several examples An example of the standing of
'Eved 'Ivri in Israel. In 1 Samuel 25:11 Abigail relied on the advice of a
slave rather than the master. In Genesis 15:2 Eliezer, a slave from Damascus,
was to be heir to Abraham's estate. In Genesis 24:1 Eliezer served as Isaac's
guardian, and in 1 Chronicles 2:34 an Egyptian slave, Jarha, married the
daughter of Sheshan's house. and in Genesis 15:2 a slave became an heir. The
Interpreter's Bible, p. 996.
[25] Durant is
referring to Exodus 21:2
[25] Durant is referring
to Leviticus 25:8-11. This standard of seven times seven plus one appears again
in Matthew 18:22 with a minor modification.
[25] The
Interpreter's Bible, vol.1, p. 995; Scott, op.cit., p. 265
[25] Horwitz, op.cit.,
p. 245. Conservative rabbis emphasize that there were no Israeli slaves. Moses
used the word "'Eved", which means "servant".
[25] Ibid., p.
246.
[25] Ibid., p.
246.
[25] Exodus 22:32.
[25] Ibid., p.
247; Deuteronomy 15:14. Until recently, prisoners from Wyoming prisons had to
be given $30.00 and a horse upon their release.
[25] Ibid., p.
245.
[25] Ibid., p.
245.
[25] Ibid., p.
245. The word "all" reflects the corporate responsibility of the
entire Israeli community.
[25] Ibid., p.
247.
[25] Ibid., p.
249.
[25] Ibid., p.
136. Gittin II, 4, 4. See also verse 20.
[25] Ibid., p. 137-138.
[25] Ibid., p.
245.
[25] Ibid., p.
246.
[25] Ibid., p.
256.
[25] Ibid., p.
257.
Initial Commentaries
12Whosoever strikes a man so that he dies shall
be put to death.
Deliberate shedding
of blood "required reckoning" because "God made man in his own
image". Genesis 9:5-6. This reckoning was usually done by a near kinsman
of the victim, and did not run to the extended family or the clan. Numbers 35:19a and Deuteronomy 19:12b. A
Catholic Commentary on Holy Scripture, p. 220. Leviticus 24:17, Matthew
26:52b warns that "he who takes to the sword will die by the sword". Wilmore's
New Analytical Reference Bible, p. 72.
Murder and assault
were to be judged by "the judge who is in office in those days" and
the Levitical priests. Neither murder nor assault were without precedent, so
the case would be decided by the local judge rather than by Moses or the king.
Deuteronomy 17:8-9. Conservative rabbis point out that Deuteronomy 17:9 also
shows the beginning of a jury, and that Exodus 23:1 and Proverbs 25:7-10 set
judicial procedures such as the right to face the accusers and examine the
evidence.
Execution required
the testimony of two witnesses. Numbers 35:30
Not even the
friends of the victim nor the magistrates could pardon or ransom a murderer.
Numbers 35:31; Benson, op.cit., p. 232.
The presence of
"an instrument of iron", "a stone", or "a weapon of
wood" indicated an intent to harm. If the victim died from such blows, the
crime was murder. Deuteronomy 35:16-19.
Because of God's
personal covenant, David did not die for the murder of Uriah, but his unborn
child died and the House of David was cursed with dissension. 1 Samuel 12:13.
The Code of
Hammurabi provided no law regarding murder except that a wife would be impaled
for murdering her husband. Assyrian law only mentions homicide resulting from
wounds, and punishes them with fines. Hittite law distinguished between
deliberate and accidental killing, like the Mosaic Code, but the punishment for
both was in fines. A Catholic Commentary on Holy Scripture, p. 220.
13But if he did not lie in wait for him, but
God let him fall into his hand, then I will appoint for you a place to which he
may flee.
13a, "if he did
not lie in wait for him" is consistent with Numbers 35:22-28 and Deuteronomy 19:4-13. This is an example of
the humaneness of the interpretation.
13b, "God let him
fall into his hand" is illustrated in
1 Samuel 24:4, 10, & 18. The Lord delivered Saul into David's hand.
Since the hand of God is in all things, "when a man is killed by what we
call accident, without any intention of the agent, he is said to have been
delivered into his hand by God, without whose divine foresight and permission
the event could not have happened." Benson, op.cit., p. 232.
13c provides for
Cities of Refuge, which were created as protection from the swift justice of
the blood avenger. The man slayer was guaranteed asylum so that the case could
be adjudicated soberly by legal authorities. The New Oxford Annotated Bible
with the Apocrypha, p. 94.
Numbers 35:22-28
details that "the congregation shall judge between the manslayer and the
avenger of blood, in accordance with these statutes." Micah 7:2 complains
about the corruption of these juries.
Originally the
refuge was at the alter - or possibly at the camp of the Levites. Benson,
op.cit., p. 232; Michner, James, The Source, p. 322-323. As the society
became more settled, and especially after the Temple was built in Jerusalem,
six cities were identified as the Cities of Refuge. These cities are discussed
in Numbers 35:11, Deuteronomy 4:41-43 & 19:3, and Joshua 20:2.
The opportunity
which David had to kill Saul in 1 Samuel 24:1-22, can be seen as an example of
how a man in covenant with God can lay vengeance aside. Another example is
found in 2 Samuel 16:5-14 in which David, now king, deferred the punishment of
Saul's son, Shimie, to the Lord.
14But if a man willfully attacks another to
kill him treacherously, you shall take him from my altar, that he may die.
Numbers 15:30
details that if a crime is "high handed" it reviles the Lord. Numbers
35:20 and Deuteronomy 19:11-12 detail the effect of acts done in hate. Hebrews
10:26 is one of the passages which condemns acts of deliberate sin after the
individual receives the knowledge of truth.
1 Kings 2:28-34 reports
how Joab sought refuge at the horns of the alter, and Solomon sent Benaiah to
remove him and strike him down. 2 Kings 11:15 reports how Jehoiada the priest
ordered the captains to remove Queen Athaliah from the horns of the alter, take
her out of the Temple, and execute her. This contrasts with Solomon's trial and
release of Adonijah after he had sought refuge at the horns of the alter. 1
Kings 1:49-53.
Monroe Smith's
"Elements of Law", at p. 314, discusses how the Mediaeval church
believed that it could not shed blood, and therefore shut felons into solitary
confinement on a limited diet. This is a revision of "the narrow
cell" concept after prisons became institutionalized. They were removed
from the clergy - and the alter - and would therefore die. Conservative rabbis
reinforce this perception, saying that since the person died because they
couldn't bring sacrifices. They died by the blood avengers.
"(T)he
willful, presumptuous, deliberate murderer ... was to be taken by the officers
of justice even from the alter of God itself, and put to death. `Though he was
the high priest, and in the act of sacrifice, he was to be taken away without
delay, if he had committed `willful murder'" Scott, op.cit., p. 267.
Deuteronomy 27:24 curses such a crime.
War and rebellion
have always raised a question about what constitutes murder. In 2 Samuel
3:26-30 King David laid the blame for Abner's death on Joab. Then, in 2 Samuel
20:4-13 Joab killed Amasa to prevent being relieved as commander, and nothing
came of it.
2 Samuel 14:6 tell
the allegory of two brothers who quarreled until one died. King David refused
to kill the surviving brother because it would leave the widow without
inheritance.
15Whoever strikes his father or his mother
shall be put to death.
Assaults against
parents, by either word or deed, were punishable by stoning. Deuteronomy
21:18-21. The authority of God, as delegated to parents, is honored when they
are honored, and despised when they are despised. Scott, op.cit., p. 267. The
duty owed by children to their parents was so sacred and inviolable that is was
given directly to Moses on Mt. Sinai. It is listed as the final Commandment in
the first pentad. This puts it among the Commandments which deal with the
individual's relationship with God. Deuteronomy 21:18 points out that this
punishment was not dealt out capriciously. But, “if after repeated admonitions
from their parents, the children persisted in their undutiful carriage, without
hope of reformation, then, upon accusation of their parents, they were put to
death." Benson, op.cit., p. 233. Conservative rabbis point out that the
crimes of word and deed were separated in the code to emphasize them. If they
were adjacent they could appear to be a traditional Jewish double statement.
The Mosaic Code was
the only Near Eastern system which included the mother in these rights. The
Code of Hammurabi allowed the father to cast out his son for the second grave
offence. The greater severity of the Mosaic Code shows its higher estimate of
the importance of obedience to both parents. A Catholic Commentary on Holy
Scripture, p. 220.
Proverbs 30:11-14
identifies four types of sinners; the unfilial, the self satisfied, the
arrogant, and the avaricious. Those who assault their parents are first on the
list. 1 Timothy 1:8-9 provides a different list, but that list still contains
both patricide and matricide.
16Whoever steals a man, whether he sells him or
is found in possession of him, shall be put to death.
The Septuagint
moves verse 16 below verse 17, about cursing parents, so the two verses
pertaining to parents are together in their most natural order. Scott, op.cit., p. 267.
The death penalty
may have only applied when the victim was a Hebrew. Scott, op.cit., p. 267.
This would be consistent with the general laws on slavery in the first
Decalogue. It is not clear within the
text whether the penalty applied to gentiles.
Deuteronomy 24:7
specifically applies the kidnapping rule to "one of his brethren, the
people of Israel". The rationale there is, "so you shall purge the
evil from the midst of you".
Numbers 35:31
specifies that if the captive dies during the kidnapping, no ransom could paid
to redeem the criminal.
Kidnapping is
listed among the examples of lawlessness in 1 Timothy 1:10.
The Code of
Hammurabi also prescribes death for kidnapping whether or not the victim is
sold into slavery. The Hittite Laws never set a penalty. A Catholic
Commentary on Holy Scripture, p. 220. 1 Timothy 1:9-10 indicates that death
was the penalty for kidnapping during Pauline times.
Genesis 37:28 tells
of Midianite traders kidnapping Joseph, and 37:36 tells of them selling him to
Potiphar. Apparently the kidnapping laws had not developed yet among the Hebrii
tribes.
17Whoever curses his father or his mother shall
be put to death.
"Curses"
may also have read "reviles". Leviticus 20:9, Deuteronomy 27:16,
Proverbs 20:20, Matthew 15:4b, Mark 7:10b.
The curse,
according to ancient belief, released an inexorable power, thus making it as
serious to curse parents as to strike them. The New Oxford Annotated Bible
with the Apocrypha, p. 94. The story of Balaam, in Numbers 22-24,
illustrates this belief. It is stated again, in a positive form, when Jesus
empowers Peter in Matthew 16:19 and 18:18. God can curse or bless, and can also
empower humans to curse or bless on his behalf. Men can sentence or forgive in
the name of God.
[25]18When men quarrel
and one strikes the other with a stone or with his fist and the man does not
die but keeps his bed, 19then if the man rises again and walks abroad
with his staff, he that struck him shall be clear; only he shall pay for the
loss of his time, and shall have him thoroughly healed.
18-19 The Mosaic Code
requires that the victim be compensated both for lost time and for medical
expenses incurred from incapacitating injuries. The Code of Hammurabi required
only the compensation of medical expenses. Hittite law required compensation
for time lost, medical expenses, and pain; they then further levied a fine of
six silver half-shekels. A Catholic Commentary on Holy Scripture, p.
220.
18 The term
"fist" did not appear until the Septuagint. A Catholic Commentary
on Holy Scripture, p. 220. The rule would not, therefore, have applied to
the Hebrews quarreling in the mud pits in Exodus 2:13.
"another"
might have read "his neighbor".
Wives were not
allowed to interfere with these quarrels. Deuteronomy 25:11.
As mentioned above,
the presence of "an instrument of iron", "a stone", or
"a weapon of wood" indicated an intent to harm. Deuteronomy 35:16-19.
See Isaiah 58:3-4
for an interesting evaluation of quarreling.
19 "the loss of
his time" might have read "his ceasing". Conservative rabbis
emphasize that forgiveness meant complete healing. There could be no vengeance.
20When a man strikes his slave, male or female,
with a rod and the slave dies under his hand, he shall be punished. 21But
if the slave survives a day or two, he is not to be punished; for the slave is
his money.
20-21
"Servants" were expected to be punished, mere admonishment was
insufficient. Proverbs 29:19.
The rod was the
customary instrument of instruction and discipline. Proverbs 29:15. A man who
beats his slave to death with a rod is punished, not with death - since the
weapon is not lethal and homicide is presumably not intended - but apparently
by a fine. If the slave survived for
two days, the connection of the death with the beating was no longer evident,
and the loss of the master's property (DV "money") was considered
sufficient punishment. The Code of Hammurabi also implies that a master could
not put his slave to death at will. A slave's disobedience was punished by
ear-mutilation. A Catholic Commentary on Holy Scripture, p. 220. The
Babylonian ear mutilation does not appear to be related to the awl being
drilled through a submitting 'Eved 'Ivri's ear.
If death occurred
while the master was punishing the servant the master was punished as the
magistrate saw fit, according to the circumstances. Benson, op.cit., p. 233.
20
"punished" may have read "avenged". In Genesis 4:15 this vengeance
was sevenfold or seventy-sevenfold. By the time of the Covenant Code vengeance
had been reduced to lex talionis, or tit for tat. Romans 13:4 assigns vengeance
to the ruling authorities. Conservative rabbis point out that this provision
applied only to gentiles.
21 Leviticus 25:45-46
reinforces that a foreign slave is considered the master's money.
22When men strive together, and hurt a woman
with child, so that there is a miscarriage, and yet no harm follows, the one
who hurt her shall be fined, according as the woman's husband shall lay upon
him; and he shall pay as the judges determine.
22 If a pregnant
woman was injured in the course of a fight between two men, and suffered a
miscarriage, the man who hurt her was punished by a fine, determined by the
woman's husband. "And he shall pay
for the miscarriage" (MT slightly corrected). The fetus was not regarded as a person. The other codes agree with the Mosaic Code in imposing a fine,
but they have more developed legislation and distinguish different cases. A
Catholic Commentary on Holy Scripture, p. 220. Here the husband's demand
must be approved by the judges, whereas in verse 30 the demand is not approved.
Conservative rabbis report that abortion was only available to save the
mother's life. The mother had the right to say that she would die so the son
could live.
23If any harm follows, then you shall give life
for life, 24eye for eye, tooth for tooth, hand for hand, foot for
foot, 25burn for burn, wound for wound, stripe for stripe.
23-25 The lex talionis
is a very ancient and widespread law which makes the punishment agree with the
offence. It checks passion and moderates the desire of vengeance. The Hebrews replaced the penalties with
money compensation, except in the case of murder. Such compensation was more
agreeable to the offender and profitable to the injured. In the instance of
injury to a pregnant woman, discussed in verse 18, lex talionis applied either
if the fetus miscarried or if the mother died. The application of the penalty to
innocent persons, like the son or wife of the offender, is a grave defect of
justice in the Code of Hammurabi and Assyrian law. These codes also only impose
a fine if the injured person was inferior in rank. Hittite law imposes a fine in all cases. Only freemen enjoyed the benefit of lex
talionis under any of the Near Eastern codes. A Catholic Commentary on Holy
Scripture, p. 220. The New Oxford Annotated Bible with the Apocrypha,
p. 94.
"It seems
probable, that it was not necessarily always to take it strictly and literally,
but that it might in some cases be satisfied with pecuniary mulcts, or with
such satisfaction as the injuring party would give, and the injured accept.
Indeed the injustice of the literal execution of it, in many cases is apparent...
It is especially to be observed that the execution of these laws was not put
into the hands of private persons, and that they were not allowances for
private revenge, but rules to regulate the magistrate's decision, who thus far,
if he judged the heinousness of the offence required of it, but no further;
and, no doubt, might abate of this rigor when alleviating circumstances
appeared to render it proper so to do."
Lex talionis was a
tremendous advance over the law of revenge which was commonplace during the
time of the Patriarchs. Genesis 4:24 provides "if Cain is avenged
sevenfold, truly Lamech seventy-sevenfold." The principle of forgiveness
until "seventy times seven times" did not develop until New Testament
times. Harper Study Bible, p. 113.
Lex talionis is
re-articulated in Leviticus 24:19. Although lex talionis is contradicted in the
Sermon on the Mount, Matthew 5:38-41, "this standard of forgiveness is not
followed to this day. It is regarded as an ideal of a perfect world. We do not
practice it, we do not expect it from others, and we do not teach it to our
children." Michael H. Hart, The 100: A Ranking of the Most Influential
Persons in History, p. 51.
24-25 Leviticus 24:20,
Deuteronomy 19:21, Matthew 5:38 & 7:2, Revelations 16:6. Adonibezek had his
thumbs and great toes cut off after his defeat at Bezek because that is what he
was accustomed to doing to the kings he had defeated. Judges 1:4-7.
[25] Horwitz, op.cit.,
p. 159. Will Durant believes that the Mosaic Code was written down at least fifteen
hundred years after the Code of Hammurabi, but showed little advance. Mosaic
legal organization, for example, showed an archaic retrogression to primitive
ecclesiastical control. Will Durant, Our Oriental Heritage, p. 338.
[25] Horwitz, op.cit.,
p. 168.
[25] Ibid., p.
168. Numbers 35:30-31.
[25] Ibid., p.
168-169.
[25] Ibid., p.
169.
[25] Ibid., p.
169.
[25] Ibid., p.
191.
[25] Ibid., p.
191-192.
[25] Ibid., p.
192.
[25] Ibid., p.
192.
[25] Ibid., p.
192. The scripture refers to an axe head slipping off. Deuteronomy 19:5.
[25] Ibid., p.
192. The scripture points to an accident in which the actor knew the axe head
was loose. Numbers 35:22.
[25] Ibid., p.
193.
[25] Ibid., p.
194.
[25] Ibid., p.
194.
[25] Ibid., p.
194.
[25] Ibid., p.
195.
[25] Ibid., p.
195. In the Kingdom of Hungary, convicted nobles were held in house arrest and
fed only beef and wine. They tended to bloat and die within two years.
[25] Lewis I. Newman, The
Talmudic Anthology, p. 294. A more complete treatment of this idea of
corporate responsibility is found in Roger L. Thomas, The Complete Conquest;
a History of the Jews.
[25] Horwitz, op.cit.,
p. 196.
[25] Ibid., p.
196.
[25] Ibid., p.
196.
[25] Ibid., p.
196.
[25] Ibid., p.
197.
[25] Ibid., p.
197.
[25] Ibid., p.
197.
[25] Ibid., p.
197.
[25] Ibid., p.
198.
[25] Ibid., p.
160.
[25] Durant, op.cit., p.
338, is quoting Deuteronomy 15:6.
[25] Ibid., p.
337.
[25] Horwitz, op.cit.,
p. 594 and 2.
[25] Ibid., p.
594. This is an application of Numbers 35:31.
[25] Ibid., p.
595.
[25] Ibid., p.
595. This interpretation is consistent with Deuteronomy 22:29.
[25] Ibid., p.
595.
[25] Ibid., p.
595.
[25] Ibid., p.
596.
[25] Ibid., p.
596.
[25]Ibid., p. 597.
Conservative rabbis point out that since our concept of minimum wage had not
yet developed, the compensation was at the victim's regular wage.
[25] Ibid., p.
598-599.
[25] Ibid., p.
598.
[25] Ibid., p.
598. See also Matthew 6.
[25] Deuteronomy
22:13-21 is the only biblical example of this.
[25]Ibid., p. 600.
Conservative rabbis point out that two witnesses were required here.
[25] Ibid., p.
135-136. The 24 members of the body were discussed earlier.
[25] Ibid., p.
191.
[25] Ibid., p.
592-593.
[25] Ezekiel 37:9-10.
Initial Commentaries
26When a man strikes the eye of his slave, male
or female, and destroys it, he shall let the slave go free for the eye's sake. 27If
he knocks out the tooth of his slave, male or female, he shall let the slave go
free for the tooth's sake.
If a master injured
a slave, even only the loss of a tooth, the slave went free. This humane law was peculiar to the Mosaic
Code. In the Code of Hammurabi and the Hittite Laws an outsider who injured a
slave had to pay a fine to the master. A Catholic Commentary on Holy
Scripture, p. 220.
Job 31:13 compared
this principle of compassion for his slaves to God's treatment of Israel. See
also Psalms 9:12; 10:18 & 72:12-14; Proverbs 22:22-24; Ephesians 6:9; and
Colossians 4:1.
28When an ox gores a man or a woman to death,
the ox shall be stoned, and its flesh shall not be eaten; but the owner of the
ox shall be clear.
Any animal which
caused a human death was slaughtered. Genesis 9:5. An animal's purpose was to
be useful. Genesis 9:2-3. That animal's flesh could not be eaten because of the
material blood-guilt attached to it. A Catholic Commentary on Holy Scripture,
p. 220.
29But if the ox has been accustomed to gore in
the past, and its owner has been warned but has not kept it in, and it kills a
man or a woman, the ox shall be stoned, and its owner also shall be put to
death. 30If a ransom is laid
on him, then he shall give for the redemption of his life whatever is laid upon
him. 31If it gores a man's
son or daughter, he shall be dealt with according to this same rule. 32If
the ox gores a slave, male or female, the owner shall give to their master
thirty shekels of silver, and the ox shall be stoned.
The owner, if
culpably negligent, was subject to the lex talionis. This was usually commuted
to a fine. Since the fine was substituted for the life of the offender, the age
or rank of the victim was irrelevant. The full blood-price of thirty pieces of
silver - $12.00 - had to be paid even if the victim was a slave. The Code of Hammurabi agrees with Mosaic
Code in this concept of owner liability, but it spares the life of the ox and
makes the fine the blood-price of the victim; thirty shekels for a free man,
twenty for a slave. A Catholic Commentary on Holy Scripture, p. 220.
Exodus 34:19-20 and
Deuteronomy 21:1-9 describe the ritual sacrificing of cattle as required here
in verse 29d. Deuteronomy 21:1-9 specifically deals with the ritual of
sacrifice in the event someone is found dead without an apparent perpetrator.
This destruction is
consistent with verse 28. When one piece of property damaged another piece of
property the offending piece had to be destroyed.
Exodus 21:22
applies this same rule of damages as here in verse 30, but requires that the
judges approve the amount of the demand.
Zechariah 11:12-13
uses thirty shekels of silver, specified here in verse 32b, as the redemptive
value for "Grace", the covenant which YHWH had made with his people,
and "Union", the brotherhood between Israel and Judah. Matthew 26:15
also sets thirty shekels as the price paid to Judas for the betrayal.
[25] 33When a man
leaves a pit open, or when a man digs a pit and does not cover it, and an ox or
an ass falls into it, 34the owner of the pit shall make it good; he
shall give money to its owners, and the dead beast shall be his.
35When one man's ox
hurts another's so that it dies, then they shall sell the live ox and divide the
price of it; and the dead beast also they shall divide. 36Or if it
is known that the ox has been accustomed to gore in the past, and its owner has
not kept it in, he shall pay ox for ox, and the dead beast shall be his.
Verses 33-36
require that the loss of a domestic animal which fell into a neighbor's cistern
or was gored by a neighbor's ox had to be made good if the cistern had been
left uncovered or if the ox was known to be ferocious. A Catholic Commentary
on Holy Scripture, p. 221.
Jesus asked, in
Luke 14:5, who would not pull an ass or an ox out of such a well on the Sabbath
Day. This is the provision he was citing. The Pharisees had specific exclusions
regarding life or blood losses.
Verse 34 provides
that the owner receive the price of the animal and that the neighbor retain the
carcass. Cisterns for the preservation of rainwater are still common in
Palestine where springs are rare. If
there was no culpable negligence, the injured ox was sold and the parties
shared the price equally. If the animal was killed, they shared its carcass. In
either event the flesh of an animal which had not been ritually slaughtered was
eaten at this period. The Code of
Hammurabi and the Hittite Laws had similar decisions, but the Hittites imposed
a double restitution. A Catholic Commentary on Holy Scripture, p. 221.
The concept of restitution is consistent throughout the Torah and Talmud. See,
for example, Exodus 21:36, 22:6 & 14.
22:1If a man steals an
ox or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and
four sheep for a sheep. He shall make restitution; if he has nothing, then he
shall be sold for his theft. 4If the stolen beast is found alive in
his possession, whether it is an ox or an ass or a sheep, he shall pay double.
1-4
These verses have been presented in the order in which they are found in
Hebrew. St. Jerome’s verse 22:1 is
21:37 in Hebrew. Verse 2, in the order
shown here, is 22:1 in Hebrew. Harper Study Bible, p. 114.
A man who stole a domestic animal had to make a fourfold or fivefold restitution. If the animal was recovered, the restitution was twofold. A Catholic Commentary on Holy Scripture, p. 221.
Leviticus 6:1-7 and Numbers 5:5-7 provide for restitution in full plus one fifth, then requires that an unblemished ram be brought to the priests as punitive damages and guilt offering.
In 2 Samuel 12:6, David set this fourfold redemption in his answer to Nathan. In Luke 19:8, Zacchaeus swore that if he may have defrauded anyone he repaid them fourfold.
Proverbs 6:30-31 holds the redemption at sevenfold if the stealing was other than for survival. Pillai, Orientalisms of the Bible, vol 2, p. 44.
The word "sheep" may also have read "goat".
[25] Horwitz, op.cit.,
p. 594.
[25] Monroe Smith would
say that the Jews emphasized justice and the English emphasized certainty.
[25] Ibid., p.
569.
[25] Ibid., p.
571.
[25] Ibid., p.
571.
[25] Ibid., p.
573.
[25] Ibid., p.
573. The concept of res ipsa loquitur will be discussed later in the study.
[25] Ibid., p.
576.
[25] Ibid., p.
577.
[25] Ibid., p.
577-578.
[25] Ibid., p.
577.
[25] This is the
meaning of Exodus 21:35b.
[25] Ibid., p.
577-580.
[25] Ibid., p.
581.
[25] Ibid., p.
584.
[25] Ibid., p.
571.
[25] Ibid., p.
585-587.
[25] Ibid., p.
576.
[25] Ibid., p.
605.
[25] Ibid., p.
570.
[25] Ibid., p.
608.
[25] 5When a man causes a field
or vineyard to be grazed over, or lets
his beast loose and it feeds in another
man's field, he shall make
restitution from the best in his own
field and in his own vineyard.
As in Job 20:18, injury
to a neighbor's field or vineyard by letting one's beast loose on it must be
made good. At least the first part of the verse, "causes", assumes
that the act was deliberate. Restitution had to be made from the best that the
offender had. Benson, op.cit., p. 235.
Today's English
Version,
p. 67, claims that verse 5 pertains to fires out of control rather than beasts.
6When fire breaks out and catches in thorns so
that the stacked grain or the standing grain or the field is consumed, he that
kindled the fire shall make full restitution.
Injury caused by
fire, catching in brushwood - the Vulgate uses "thorn" - and
spreading to a neighbor's land must also be made good. Negligence was presumed both in stray cattle,
verse 5, and here in fire. The Code of Hammurabi and the Hittite Laws agree
with the Mosaic Code, but they are more precise in estimating the damage and
compensation for straying livestock. A Catholic Commentary on Holy Scripture,
p. 221.
The person who
kindled the fire must answer for it whether or not it could be proven that the
damage was deliberate. "Men must
suffer for their carelessness as well as for their malice. It will make us very
careful of ourselves, if we consider that we are accountable, not only for the
hurt we do, but for the hurt we occasion through inadvertency." Benson,
op.cit., p. 235.
Samson, however,
did not make restitution to the Philistines in Judges 15:4-5 because it was an
act of war or rebellion. Absalom set Joab's field on fire to punish him for
disobedience. 2 Samuel 14:29-33.
7If a man delivers to his neighbor money or
goods to keep, and it is stolen out of the man's house, then, if the thief is
found, he shall pay double.
If a deposit was
stolen, the thief must make twofold restitution. A Catholic Commentary on
Holy Scripture, p. 221. This double payment was consistent with Exodus 22:4
regarding stolen animals, but Proverbs 6:30-31 claims the restitution to be
sevenfold. Bishop Pillai points out in Orientalisms in the Bible, vol.
2, p. 44, that the Proverbs existed long before the Covenant Code was written.
The reduction of the restitution would be consistent with progressive
revelation and lex talionis.
John 12:6 accuses
Judas Ish Karoth of embezzling from the money box that was entrusted to him.
Jeremiah 2:26 shames such a person. In 1 Corinthians 6:10 Paul guarantees that
thieves will not inherit the kingdom of God.
8If the thief is not found, the owner of the
house shall come near to God, to show whether or not he has put his hand to his
neighbor's goods.
If the thief was
not discovered, the depositary must establish his innocence before God. It is
possible that the depositary established his innocence by an ordeal, but the
Septuagint indicates that it was more probably by an oath which the guilty
would fear to take. The Code of
Hammurabi agrees with the Mosaic Code in imposing twofold restitution on the
thief and making the depositary responsible if culpably negligently. The more
urbane Code of Hammurabi requires an attested, written contract for the deposit
to be valid. Deposits were the usual
means of safeguarding property during the absence of the owner. Cases in which
lost things were alleged to be found in possession of another had to be decided
before God as in verse 8. Verse 9
mandates; "He whom God shall condemn shall pay double to his
neighbor." The fine was for theft
if the defendant was found guilty, and for false accusation if the accuser was
found guilty. The Code of Hammurabi and the Hittite Laws also regard
appropriation of things lost as theft and the Code of Hammurabi obliges the
possessor to prove by witnesses that the object was honestly purchased. A
Catholic Commentary on Holy Scripture, p. 221.
The oath before
YHWH was consistent with Exodus 22:28a which specifies "You shall not
revile YHWH". This use of the doorpost, on which the lamb's blood was
spread during the Passover in Egypt, was again used in Exodus 21:6 where the
slave who elects to remain with his master takes that oath at the doorpost.
The definition of
"sanctuary" could be the doorpost, used for sacred oaths, or the
horns of the alter for oracular decisions. The New Oxford Annotated Bible
with the Apocrypha, p. 95-96. In 1 Kings 8:31-32 King Solomon, dedicating
the Temple, provides; "If a man sins against his neighbor and was made to
take an oath, and comes and swears his oath before thine alter in this house,
then hear thou in heaven, and act, and judge thy servants, condemning the
guilty by bringing his conduct upon his own head, and vindicating the righteous
by rewarding him according to his righteousness." As the society had
become more settled, the oaths had become more formal. They had moved from the
individual doorpost to the Temple in Jerusalem.
The masters of the
assembly were charged with examining the depository, then the priests advised
the master in determining his guilt. Deuteronomy 19:17-18. See also Psalms
82:1.
9For every breach of trust, whether it is for
ox, for ass, for sheep, for clothing, or for any kind of lost thing, of which
one says, `This is it,' the case of both parties shall come before God; he whom
God shall condemn shall pay double to his neighbor.
During the plagues,
specifically in Exodus 8:28, Pharaoh called on Moses to "Make entreaty for
me." Pharaoh was contemplating the entrustment of his slaves - his
personal property - to Moses, and wanted a guarantee that this property would
be neither stolen nor damaged.
Breach of
entrustment was considered "breaking faith with the Lord."
Deuteronomy 5:6-7.
Establishing
whether the depository had embezzled the entrusted property is usually
hopeless. This problem was provided for in 1 Kings 8:31; the decision was left
to the Lord.
The process of
coming before the judges was set out in Deuteronomy 25:1. Then, 2 Chronicles
19:10 details the charge which the judges were assigned. Deuteronomy 17:9
identifies the judges, and sets the appellate procedure. This procedure was
amended in Matthew 18:15-17. See also Luke 17:3-4.
Again, double
restitution is consistent throughout the Code.
[25] 10If a man delivers
to his neighbor an ass or an ox or a sheep or any beast to keep, and it dies or
is hurt or is driven away, without any one seeing it, 11an oath by
the Lord shall be between them both to see whether he has not put his hand to
his neighbor's property; and the owner shall accept the oath, and he shall not
make restitution. 12But if
it is stolen from him, he shall make restitution to its owner. 13If it is torn by beasts, let
him bring it as evidence; he shall not make restitution for what has been torn.
If there were no
witnesses to the death, injury, or hostile seizure of the animal, the neighbor
could attest his innocence by oath. If it was stolen from him, he was bound to restitution.
If it was torn by a wild beast he had to exhibit the torn carcass. The Code of Hammurabi also ordered
restitution if the animal was stolen, but innocence could be established by
oath if the animal had been seized by a wild beast, or destroyed by lightning
or pestilence. Hittite Law agreed with the Mosaic Code in the case of seizure
by a wild beast. A Catholic
Commentary on Holy Scripture, p. 221. If there were any witnesses,
Leviticus 5:1 required them to stand forward and tell what they knew.
Joseph's conduct in
entrustment of Potiphar's household and property was proof of his competence.
That he survived after being accused by Potiphar's wife probably ran to an oath
as described in verse 11. See also Luke 16:11.
The "oath by
the Lord" was just as much in use when Hebrews 6:16 was written as it was
when Jacob and Laban made the Covenant at Mizpah in Genesis 31:49, or between
Shemei and Solomon in 1 Kings 2:42.
Leviticus 6:3
specifies that if the property was later found, it was to be restored to its
owner.
Jacob tested Laban
for his accusation of theft in Genesis 31:36-39. Both the standard of proof and
the measure of damages were the same as
those set out here in the Covenant Code.
14If a man borrows
anything of his neighbor, and it is hurt or dies, the owner not being with it,
he shall make full restitution.
15If the owner was
with it, he shall not make restitution; if it was hired, it came for its hire.
An animal may be
loaned to another either gratis, or for hire.
In the first case, injury to the animal must be made good. Negligence
was presumed unless the owner was present.
In the second case no compensation was exacted. If it was hired, it came
for its hire. If a hired servant was present when the animal was injured, the
loss was deducted from his wages. The
Code of Hammurabi and Hittite Law only consider the case of an animal hired out
to another. The renter must compensate the owner for damages, unless the beast
perished by an act of God, when innocence must be established by oath. In the more primitive and humane Mosaic Code
service of the beast was usually given gratis. A Catholic Commentary on Holy
Scripture, p. 221.
Psalm 37:21
discusses the wicked who borrow and (can not) pay back, versus the righteous
who are generous and give. See also Matthew 5:42 and Luke 6:35.
[25] Horwitz, op.cit.,
p. 582.
[25] Ibid., p.
582.
[25] Ibid., p.
582.
[25] Ibid., p.
588.
[25] Ibid., p.
588.
[25] Ibid., p.
573.
[25] Ibid., p.
589.
[25] Ibid., p.
518.
[25] Ibid., p.
519.
[25] Ibid., p.
602.
[25] Ibid., p.
520.
[25]Ibid., p. 521. Exodus
22:13 refers to an act of God or force majeure as "torn by beasts".
[25] Ibid., p.
523.
[25] Ibid., p.
525.
[25] Newman, op.cit.,
p. 486.
[25] Horwitz, op.cit.,
p. 601.
[25] Ibid., p.
602.
[25] Ibid., p.
662.
[25]Monroe Smith,
"The Elements of Law", in Arthur T. Vanderbilt, ed., Studying Law,
p. 171-376.
[25]Ibid., p. 171.
[25]Ibid., 172. This social
will is often measured first as the generalized other, and then as the social
compact. See Thomas, The Complete Conquest: A History of the Jews, p.
13-51.
[25]Ibid., p. 173-174.
[25]Ibid., p. 176.
[25]Ibid., p. 173.
[25]Ibid., p. 176.
"The ultimate purpose of the law, indeed, is
not the maintenance of the social order but the assurance of the conditions of
social progress. That man shall obtain increasing control over his physical
environment; that the relations of men shall become more and more kindly; that
human life shall be more and more worth living - these are the final objects of
the law." Ibid., p. 174.
"Manners, morals and law, all appear to rest
ultimately upon social utility. The
conversion of usage into law, the decision whether any particular rule of
conduct shall be supported by the physical power of the community, is clearly a
question of social expediency. Social utility or expediency is determined, in
the whole field of conduct, by the social judgment, and social force can be
exercised only by virtue of the social will. The social judgment, however, is
usually inarticulate; it reveals itself as sentiment. In the matters with which
the law deals, we call this sentiment the sense of justice. The social will
likewise is, in most instances, not aimless indeed, but only vaguely aware of
its true aim; it manifests itself as impulse to do something, to sweep aside or
crush something that is felt to be alien and hostile. As it is the primary
function of practical ethics to interpret moral emotion and to give articulate
form to the moral sentiment, so it is the primary function of practical
jurisprudence to interpret the sense of justice and to formulate in legal rules
those ends toward which the social will is blindly groping." Ibid.,
p. 177.
In the English
system this is the stuff of common law.
[25]Ibid., p. 178.
"Left to itself, enforcing itself only by the
pressure of social opinion, our existing morality would tend to revert to its
primitive form, the usage of the horde. The higher social utilities which the
rules of general morals represent could never have prevailed over the interests
of the horde or of the tribe or of the class through any appeal to reason or to
individual interests; for feeling is stronger than reason and group feeling is
stronger than self-interest. The agencies which in the past have slowly
subordinated group morals to general morals, by which general morals were
perhaps first formulated, are religion and law. Every religion that has
developed beyond the stage of a clan cult has, on the whole, lent its psychical
sanction to the more general morals; and the religious sanction, like the
legal, can be made to operate with equal force over indefinite areas and upon
all social classes. The law, in so far as it has had to deal with moral
questions, has likewise put its special sanction, that of physical force,
behind general morals. In the early stages of civilization, religion apparently
played the more important part in formulating the rules of general morals and
in securing their triumph; in later periods and at the present time law has
possibly become the more efficient agency. Religion influences the believer
only; law coerces even the anarchist." Ibid., p. 179-180.
"(M)orals is that part of the social order
which is supported by social opinion, touched with more or less emotion; and
... law (is) that part of the social order which by virtue of the social will
may be supported by physical force." Ibid., p. 181.
Oliver Wendell Holmes held that if the purpose of the law has passed, the law should pass. Jean Jacques Rousseau held this same idea within his concept of "the general will".
[25]Ibid., p. 182. law is Hobbesian
community whereas morals are general will.
[25]Johnson v. State, 108 US 528. James
Madison may not have known that this right existed when he wrote the document.
[25]Ibid., p. 185. "The
existence of a duty is a question to be decided as a matter of law." Pickle
v The Board of County Commissioners of the County of Platt, 764 P.2d 262,
264 (WY 1988).
[25] Ibid., p.
185.
[25]Ibid., p. 189. Smith
believes that law can be studied over 2300 years, or approximately from the
time of Alexander's invasion of Persia. p. 189.
[25]Ibid., p. 190. This is
the major change from the eclectic, gnostic, Medieval system based on scripture
to the agnostic scientific system since the Renaissance. It is also the reason
why Talmudic scholars believe that the law has lost its morals and become a
business.
[25] Ibid., p.
189.
[25] Ibid., p.
190.
[25] Ibid., p.
191.
[25]Ibid., p. 194-195.
"For more than two thousand years it has been
an accepted legal principle that, in interpreting the written law, effect should
be given, as far as possible, to the spirit and intent of the law. Here again
the possibilities of law-finding under cover of interpretation are very great.
A distinguished German jurist, Windscheid, has remarked that in interpreting
legislation modern courts may and habitually do "think over again the
thought which the legislator was trying to express," but that the Roman
jurist went further and "thought out the thought which the legislator was
trying to think." Of this freer mode of interpretation Windscheid might
have found modern examples. The president of the highest French court, M.
Ballot-Beauprè, explained, a few years ago, that the provisions of the
Napoleonic legislation had been adapted to modern conditions by a judicial
interpretation in "le sens evolutif." "We do not inquire,"
he said,
"what the legislator willed a century
ago, but what he would have willed if he had known what our present conditions
would be." In English-speaking countries this freer mode of interpretation
has always been applied to the unwritten or common law, and it is usually
applied to the written law with a degree of boldness which is very closely
proportioned to the difficulty of securing formal amendment. Thus the rigidity
of our federal constitution has constrained the Supreme Court of the United
States to push the interpreting power to its limits. This tribunal not only thinks out the thoughts which the Fathers
were trying to think one hundred and twenty years ago, but it undertakes to
determine what they would have thought if they could have foreseen the changed
conditions and the novel problems of the present day. It has construed and
reconstrued the constitution in "the evolutive sense," until in some
respects that instrument has been reconstructed." Ibid., p. 199-200.
[25] Ibid., p.
206-207.
[25] Ibid., p.
210.
[25] Ibid., p.
214.
[25] Ibid., p.
216.
[25]Angus Campbell, The
American Voter, especially p. 148, discusses the role of opinion leaders in
the transmission of norms and values.
So does L. Frank Baum when he discusses the High Cocolorum of Thie in
his history of Oz.
[25] Ibid., p.
217.
[25] Ibid., p.
219.
[25]Ibid., p. 218. This
situation is marvelously similar to the one faced by Joshua.
[25] Ibid., p.
222.
[25] Ibid., p.
225.
[25]One of the reasons
for the persecutions was a reaction to Christian resistance to Roman law and
courts.
[25] Ibid., p.
228-229.
[25] Ibid., p.
229.
[25] Ibid., p.
230.
[25] Ibid., p.
235-236. Exodus 21:14 provides that criminals should be taken from the alter so
they would die quickly. As with the Germanic tribes, it was foregone that such
"nithings" would die, probably at the hand of the general populace.
Hungarian nobles who were convicted of crimes were locked in house arrest, and
fed nothing but fatty food and alcohol so they would die quickly. Acts 7:58
tells of two criminals who were removed from the community body and died.
[25] This is also
common throughout the Covenant Code. It is one of the general themes of lex
talionis. Only abortion, in Exodus
21:22b, lacks a specific amount of compensation.
[25] Ibid., p.
232. This again is also the case in the Covenant Code.
[25] Ibid., p.
233.
[25] Ibid., p.
233. Pickle v The Board of County Commissioners of the County of Plait,
764 P.2d 262, 264 (WY 1988) holds that determination of a duty is an issue of
law, and that proof of breach, proximate cause, and damages are issues of fact.
The law finders, such as the Germanic wisemen, the Roman jurisconsults, and the
Anglo-American judges, did not decide the merits of the case, but did decide
"how the decision was to be reached." Ibid., p. 237. Modern
judges are guided by the Rules of Civil Procedure and the Rules of Evidence in
deciding how the decision will be reached.
[25] Ibid., p.
233. Exodus 22:10-13 is an excellent example of this same burden in the
Covenant Code.
[25] Ibid., p.
233; The duty of the Plaintiff to enforce a judgment against the Defendant is
set forth in Wyoming Statute 1-17-101. The Preamble to the Constitution,
delegates the duty to "establish Justice, (and) insure domestic
Tranquility" to the state, rather than to the individual. Corwin and
Peltason, Understanding the Constitution, p. 41-42. The state then
enforces its own Orders and Judgments in criminal matters as acts against the society
or the state. Yet the state still requires the individual Plaintiffs to enforce
its Orders and Judgments in all other matters.
Commanding Officers, acting under the Uniform Code of Military Justice,
are empowered to punish their subordinates for transgressions by depriving them
of their lives, liberty, or property, yet they are powerless to resolve
disputes between individual subordinates. Fines are paid to the government,
without any compensation to the individual who has been wronged.
[25] Ibid., p. 234
& 303. Exodus 22:9b.
[25] Ibid., p.
235. Exodus 22:11. The jurats of modern affidavits, and the oath of testimony
are no longer made before God. The modern oath is enforced only by the state
under risk of perjury. This is shown in Wyoming Statute 6-1-101 et seq.
[25] Ibid., p.
235. Exodus 21:12. The similarity between the policies of the Joshua tribes of
twelfth century BCE and those of the Germanic tribes of fifth century CE
supports Smith's idea that similarity is not sufficient to support a claim of
imitation. Current copyright and patent law requires that both similarity and
access be shown. 17 USCA 501, Cornfield v CBS, Inc. (1985 CD Cal). Buchwald
v Fox.
The Joshua and the
Germanic tribes never had contact in either time or space, and the Germanic
invaders were neither Jewish nor Christian. Arnold J. Toynbee, A Study of
History, Sommervell Abridgement, Chapters IX and X.
[25] Ibid., p.
239. This is a classic example of the Rousseauian law finders reconciling with
the Hobbesian law makers.
[25] Ibid., p.
239.
[25] Ibid., p.
240-241.
[25] Ibid., p.
241.
[25] Ibid., p.
243 & 259.
[25] Ibid., p.
245. Deuteronomy 17:9.
[25] Ibid., p.
247. Smith's statement here is almost identical with Kent's statement on p. vi
of Israel's Laws and Legal Precedents. It affirms the first assumption of
Kent's hypothesis, which is the theory of this paper.
[25] Ibid., p.
259.
[25] Ibid., p.
260-261.
[25] Ibid., p.
262.
[25] Ibid., p.
266-269.
[25] Ibid., p.
277-278.
[25] Ibid., p.
279-281
[25] Ibid., p.
304.
[25] Ibid., p.
305-306.
[25] Ibid., p.
306-313 & 324-329.
[25] Ibid., p. 328.
[25] Ibid., p.
313-318. This reflects Roman law before Constantine's edicts in 317.
[25] Ibid., p.
321-322.
[25] Ibid., p.
354.
[25] Ibid., p.
362.
[25] Toynbee, op.cit.,
p. 244-246.
[25] Harvey Wish, Society
and Thought in Early America, p. 67; John A. Garraty, The Story of
America, p.51-51; Rozwenc and Bender, The Making of American Society,
p. 44-46; Todd and Curti, America's History, p. 32-33; Morris and
Greenleaf, USA, The History of a Nation, p. 67; Hicks, The Federal
Union, p. 23-24.
[25] Samuel Eliot
Morison, The Oxford History of the American People, p. 82-83.
[25] Morison, op.cit.,
p. 141.
[25] Wish, op.cit., p.
67; Garraty, op.cit., p.50-51;
[25] Ibid., p.
67.
[25] Garraty, op.cit.,
p. 50-51.
[25] Morison, op.cit.,
p. 82; Rozwenc and Bender, op.cit.,
p. 44-46.
[25] Scott, The Holy
Bible, p. 266.
[25] Morison, op.cit.,
p. 111.
[25] Ibid., p.
83.
[25] Wish, op.cit., p.
69.
[25] Anderson v
Anderson, 372 SW2d 452 (TN), Brandon v Planters' & Merchants' Bank,
1 Stew 320 (AL).
[25] Williamson v
Smart, Conference 146 (NC); Sneed v Ewing, 5 JJ Marsh 460 (KY)
[25] Seay v Bacon
4 Sneed 99 (TN).
[25] Kent, op.cit., p.
vi.
[25] US Constitution,
Article I, Section 2 provision 3, pertaining to the apportionment of
representatives, is an example. In Dred
Scott v Sanford, Chief Justice Taney only cited Article I, Section 9,
provision 1, and Article IV, Section 2, provision 3.
[25] Kelley, op.cit.,
p. 156. Section 9, provision 1 of the Constitution provided that no such ban
would go into effect until 1808.
[25] Ibid., p.
216.
[25] Ibid., p.
273.
[25] Dred Scott v
Sanford, 15 L.Ed 691 (1857), as cited in Mason and Beaney, American
Constitutional Law, p. 34.
[25] Ibid., p.
340.
[25] McElvain v Mudd
44 Alabama 48.
[25] 45 AmJur2d, Involuntary
Servitude 1 cites examples such as 18 USCA Chapter 77, Slavery and Peonage,
and 46 USCA Chapter 30 Peonage and Slavery. These will not be discussed here
simply to limit the scope and length of the treatise.
[25] 45 AmJur2d, Involuntary
Servitude, 1, p. 927. It is interesting to notice the pronouns in the
Amendment; "the United States" and "their jurisdiction".
The mind set of the Jacksonian Age was that the United States was a federation
of sovereign states. Article IV, Section 3, provision 2 of the Constitution was
written consistent with the Northwest Ordinance in that only the federal government
could hold territories beyond the borders of the several states. Here in the
Thirteenth Amendment the use of "their jurisdiction" - in the plural
- referring to territory only held by thhe federal government, we find one of
the last vestiges of the Jacksonian mind set. By the time of the Eighteenth
Amendment the use was in the singular.
[25] 45 AmJur2d, Involuntary
Servitude 3, p. 930.
[25] Kelley, op.cit.,
p. 262.
[25] Ibid., p.
363.
[25] Ibid., p.
365
[25] Ibid., p.
366.
[25] Ibid., p.
374-375.
[25] Ibid., p.
522.
[25] Garrity, op.cit.,
p. 614.
[25] Civil Rights
Cases, 27 L.Ed. 835 (1883), as cited in Mason and Beaney, op.cit., p. 399.
[25] Kelley, op.cit.,
p. 523. This is an illustration of Glendon Shubert's point, in Judicial
Policy Making, that the courts tend to reflect public policy just as much
as either the legislature or the bureaucracy.
[25] Plessy v
Ferguson, 41 L.Ed. 256 (1896),as cited in Mason and Beaney, op.cit., p.
406.
[25] Kelley, op.cit.,
p. 524.
[25] Brown v Topeka
Board of Education, 98 L.Ed. 873 (1954), as cited in Mason and Beaney,
op.cit., p. 417, 420. In a set off, Warren allowed the individual states to
establish their own desegregation plans, but gave the federal district courts
jurisdiction to decide if the states were proceeding as fast as practicable
toward good faith compliance with the order. He assigned the states the burden
of proving that each delay was necessary. Brown v Board of Education, 99
L.Ed. 1083 (1955), Mason and Beaney, op.cit., 421, 422.
[25] Kelley, op.cit.,
p. 525.
[25] Ibid., p.
735.
[25] Ibid., p. 735.
[25] Ibid., p.
715.
[25] Ibid., p.
715.
[25] Ibid., p.
735.
[25] Ibid., p.
738.
[25] Ibid., p.
887.
[25] Ibid., p.
739.
[25] Ibid., p.
764.
[25] Ibid., p.
30.
[25] State v Murray,
40 So. 930 (LA 18 )
[25] It is not clear
whether this law applied to both Spanish and Aztecs. If it applied only to
Aztecs it fits the Covenant Code under the concept of 'Eved Cana`ani. If it
also applied to 'Eved 'Ivri it was just as deviant as any other system of
debtors' prison.
[25] W.S. 6-2-102(h)
The "felony murder rule" in which deliberate murder was committed in
the course of another deliberate crime, Jones v State, 568 P.2d 837 (WY
1977) is clearly an extension of the Covenant Code standards.
[25] W.S. 6-2-102(j)
Under State v Goettina, 158 P.2d 865 (WY 1945), "that the deceased
was worthless did not justify the accused in killing the deceased, and went
more to punishment than to guilt."
[25] W.S.
6-2-102(j)(II, v, vi, & vii)
[25] W.S. 6-2-102(a)
[25] W.S.
6-2-102(e&f)
[25] For a minor to be tried
for first degree murder they must first be evaluated to determine if they can
be tried as an adult. Jahnke v State, 692 P.2d 911 (WY 1984)
[25] State v Osmus,
276 P.2d 469 (WY 1954), Leeper v State, 589 P.2d 379 (WY 1979)
[25] State v Osmus,
supra.
[25] Hollywood v
State, 120 P. 141 (WY 1912)
[25] 40 AmJur2d, Homicide
14, p. 305.
[25] See the commentary
to homicide in the second decalogue in Section I
[25] State v Helton,
276 P.2d 434 (WY 1954)
[25] W.S. 10-6-103
makes the standard applicable to aircraft pilots, W.S. 31-5-233 makes it
applicable to automobiles, and W.S. 41-13-206 makes it applicable to
watercraft.
[25] W.S. 6-2-104
[25] See the Commentary
in Section I, supra.
[25] See the Commentary
in Section I, supra.
[25] Interestingly, a
similar concept is found in Japan. They always waken their enemies before
attacking them. This was specifically illustrated at Pearl Harbor.
[25] See the Commentary
in Section I, supra.
[25] W.S. 6-2-201. If
the victim is fraudulently decoyed away, their apparent consent is a nullity. John
v State, 44 P. 51 (WY 1896)
[25] W.S. 6-2-201. The
"reward" can include any benefaction to the defendant, such as
freedom from arrest, prescription drugs, or publicity. Edge v State, 647
P.2d 557 (WY 1982) Kidnapping can be a simultaneous, or a lesser included,
offence to other crimes such as sexual assault. Driskill v State, 761
P.2d 980 (WY 1988)
[25] W.S. 6-2-202.
[25] W.S. 6-2-203.
The idea of capital
punishment dominated the first pentad of the Israeli criminal code because they
believed that Genesis 9:5-6 specifically applied to murder, and because there
was no system of prisons. The earliest records show that the courts backed off
this extreme punishment as quickly as possible. In Smith's words, they chose to
emphasize the "just" rather than the "certain". Wyoming law
shows the same tendency. The last
execution was in 1992. Mark Hopkinson
was able to contract, and pay for, an execution from inside the prison walls. Prison was not able to protect the society
from him. Hopkinson v State The execution before that was Andrew Pixley
on December 10, 1965. Pixley v State, 406 P.2d 662 (WY 1965). The idea
that a conviction was certain beyond the shadow of a doubt, the idea that there
was no chance of either a factual or legal mistake, simply does not rest well
in the minds of most people. Wyoming has listed certain crimes in which the
homicide almost had to have been deliberate. Blowing up a train or airplane,
murder for hire - either by the contractor or the executioner, killing a police
officer, murder in the course of another crime such as robbery or forcible
rape. This is not far from the Jewish concept of hatra'ah. The criminal is
warned by the act itself that what they are doing is wrong. Exodus 22:1.
Wyoming is not
alone in this attitude toward capital punishment. James V. Bennett, was director of the federal Bureau of Prisons
for almost 30 years. This is what he says about capital punishment in I
Chose Prison:
"There was something inherently
disgusting about the death penalty that led to these excesses, I thought. Small
wonder that prison wardens, ... were at the forefront of those who wanted to
abolish capital punishment.
"In 1935 I made a list of 184 executions
that had taken place in the federal and state jurisdictions during the year and
noted that executions were being carried out at the rate of eighteen for every
thousand homicides. In 1964, the year in which I retired, there were twenty one
executions at a rate of three per thousand homicides. Since then, the actual
use of the death penalty has declined further. In 1965, of sixty-seven men
condemned to death, sixty-two were reprieved. In 1966 only one man was executed
in the whole country, and in 1967 there were two. In 1968, for the first year
on record, there were no executions in the United States. Today (1969) more
than four hundred condemned men wait in death cells, while their attorneys
maneuver through the appellate process. It is safe to say that most of them
will be reprieved or their convictions set aside because they were denied a
fair trial.
"Despite this historical trend, however,
the debate about the death penalty rages on. Of our fifty states, only thirteen
have clearly repealed capital punishment. Delaware abolished the death penalty
in 1958, but reinstated it in 1961.
Colorado voted in a state wide referendum in 1966 to retain the death
penalty.
"Overseas, there is almost as much
contention. Britain suspended capital punishment capital punishment in 1965 for
a five year trial, and recently enacted legislation making the suspension
permanent. Most of the other countries of Western Europe, and Japan, have
abolished the death penalty. Canada held a parliamentary debate on the subject
in 1965 and retained capital punishment as a deterrent to murder.
"Over the years I have found myself
increasingly appalled by the nature of the penalty I was often responsible for
carrying out. As my experience increased, so did my conviction that capital
punishment was no deterrent to rape, kidnapping, armed robbery, or most
homicides. The five states with the lowest murder rates (...) have in fact
abolished the death penalty, and have seen no increase in willful killings
since they did so. In other countries
the experience has been the same. Abolishing the death penalty, furthermore, does
not indicate a softening of approach to crime and violence. It has been shown
time and again by riots, police brutality, and unrestrained gunfire that
violence begets violence." Bennett, I Chose Prison, p. 432.
[25] W.S. 6-2-501
[25] W.S. 6-2-502
[25] W.S.
6-2-502(a)(IV)
[25] Goodman v State,
601 P.2d 178 (WY 1979)
[25] W.S. 6-2-503. Keser
v State, 706 P.2d 263 (WY 1985).
[25] W.S. 6-2-302
[25] W.S. 6-2-303
[25] W.S. 6-2-304
[25] W.S. 6-2-306
[25] W.S. 6-2-311. Strand
v State, 252 P. 1030 (WY 1927); Tway v State, 50 P. 188 (WY 1897).
[25] W.S. 6-2-312. Weddle
v State, 621 P.2d 231 (WY 1980).
[25] 6 AmJur2d, Assault
and Battery 178, p. 147.
[25] Condict v
Hewitt, 369 P.2d 278 (WY 1962).
[25] Petsch v
Floorom, 538 P.2d 1011 (WY 1975)
[25] 6 AmJur2d Assault
and Battery 180, p. 148.
[25] 22 AmJur2d, Damages
252, p. 204.
[25] 22 AmJur2d, Damages
26, p. 53-54.
[25] 22 AmJur2d, Damages
26, 54.
[25] 22 AmJur2d, Damages
37, p. 62.
[25] 22 AmJur2d, Damages
39, p. 63.
[25] 22 AmJur2d, Damages
41, p. 65.
[25] Ibid., p.
65.
[25] In Petsch v
Florom, supra, the plaintiff was paid all of his medical expenses, $6,000.00
in pain and suffering, and $8,000.00 in exemplary damages.
[25] Bennett v State,
377 P.2d 634 (WY 1963). Roe v Wade and similar decisions are not the
subject of discussion here. Wyoming statute 35-6-102 provides that abortion is
legal up to viability. This language
allows the maximum freedom to the mother within the progress of science. W.S.
35-6-105 provides that no institution is required to perform an abortion, and
35-6-106 provides that no person is required to perform one.
[25] These two verses
are not separate rules. They are an example of the Hebrew style of double
statement. Other examples are found in Amos 5:24 and John 3:4.
[25] State v Hoover,
20 NC 365.
[25] McCoy v McKowen,
26 Miss 487.
[25] 45 AmJur2d, Involuntary
Servitude 4, p. 929-930.
[25] See also Matthew
26:14 regarding the price of a slave.
[25] Gray v Combs,
7 JJ Marsh (KY) 478.
[25] W.S. 11-6-101
(CummSupp 1989)
[25] The complete
definition of "predatory animals" is given in W.S. 23-1-103.
[25] W.S. 11-6-102
(CummSupp 1989)
[25] W.S. 11-65-102
(CummSupp 1989)
[25] W.S. 11-6-103
(CummSupp 1989)
[25] W.S. 11-6-104
(CummSupp 1989). The details of how the predatory animal district is formed in
each county is detailed in W.S. 11-6-201/210.
[25] W.S. 11-6-104
(CummSupp 1989)
[25] W.S. 11-6-105
(CummSupp 1989)
[25] W.S. 11-6-105 (CummSupp
1989)
[25] W.S. 10-3-101 et
seq. (CummSupp 1989)
[25] W.S. 11-6-206
(CummSupp 1989)
[25] W.S. 11-31-107
[25] W.S. 11-31-108
[25] W.S. 11-31-105
[25] W.S. 11-31-105
(CummSupp 1989) The law goes on to discuss that a dog owner is any person who
has allowed the dog to live on their premises for 20 days.
The concept of
"joint and several liability" is well beyond the purpose of this
study. In its essence it means that each dog owner can be held responsible for
the entire loss. If one has assets and the other is a pauper, the total loss is
paid by the owner who has the ability. The next step is also true; the
"collateral source rule" means that the amount recovered from one dog
owner has no impact on the amount that can be recovered from the other dog
owners.
[25] Williams v
Johnson, 781 P.2d 922 (WY 1989).
[25] Abelseth v City
of Gillette, 752 P.2d 430 (WY 1988).
[25] W.S. 11-7-403.
[25] W.S. 11-26-101.
[25] W.S. 11-27-106.
[25] W.S. 11-27-107.
[25] W.S. 11-27-102.
[25] W.S. 11-28-102(b).
[25] W.S.
11-28-102(a)(i&ii).
[25] W.S. 11-28-102(c).
[25] Garretson v
Avery, 176 P. 433 (WY 1918).
[25] W.S. 11-28-108.
[25] W.S. 11-28-103.
[25] Young v Young,
709 P.2d 1254 (WY 1985).
[25] 22 AmJur2d, Damages
399, p. 483-484.
[25] W.S. 6-3-402(e).
[25] W.S. 6-3-301.
[25] W.S. 6-3-302, 303,
and 304.
[25] W.S. 6-2-401. McGinnis
v State, 91 P. 936 (WY 1907).
[25] W.S. 6-2-402. Otte
v State, 563 P.2d 1361 (WY 1977).
[25] As to self defense
see Leeper v State, supra. As to defense of habitation or property see State
v Sorrentino, 224 P. 420 (WY 1924).
[25] Wyoming
Constitution, Article 19, provision 1.
[25] Hinkle v
Siltamaki, 361 P.2d 37 (WY 1961); Garretson v Avery, 176 P. 433 (WY
1918).
[25] W.S. 11-24-101
(a)(ii).
[25] W.S. 11-24-102.
[25] W.S. 11-24-102.
This is also an example of bailment.
[25] W.S. 1-24-104.
[25] W.S. 11-24-105.
[25] W.S. 11-24-107.
[25] W.S. 11-5-102(vii&viii).
[25] W.S.
11-4-101&102.
[25] First degree arson
is setting fire to an occupied structure, and second degree arson is setting a
fire to collect insurance. These are not the subject here.
[25] W.S. 6-3-103
[25] W.S. 6-3-104.
[25] W.S. 6-3-105.
[25] W.S. 6-3-107.
[25] Chicago,
B&Q R. Co. v Cook, 102 P. 657 (WY 1909).
[25] Union Pacific
R. Co. v Gilland, 34 P. 953 (WY 1893); Town of Douglas v Nielsen,
409 P.2d 240 (WY 1965).
[25] W.S. 1-1-109.
[25] W.S. 11-7-202
[25] W.S. 11-7-302.
[25] W.S. 11-9-102.
[25] W.S. 11-12-104.
[25] W.S. 11-13-104.
[25] W.S. 11-14-107.
[25] W.S. 11-15-105.
[25] 11-19-102.
[25] W.S. 11-23-101.
[25] W.S. 11-32-103.
[25] Lichty v Model
Homes, 211 P.2d 958 (WY 1949).
[25] Anderson
Excavating and Wrecking Co. v Certified Welding Corp, 769 P.2d 887 (WY
1988).
[25] Woodburn Bros.
v Erickson, 230 F.2d 240 (D.C. WY 1956).
[25] Truck Terminal,
Inc. v Nielson, 527 P.2d 820 (WY 1959).
[25] Anderson,
op.cit.
[25] Fuchs v Goe,
163 P.2d 783 (WY 1936).
[25] Waggoner v
General Motors Corp., 771 P.2d 1195 (WY 1989).
[25] 36A CJS, Fiduciary,
p. 388.
[25] George Bohannon
Trans., Inc. v Davis, 323 F.2d 755 (D.C. WY 1963).
[25] Finch v Canaday,
279 P.2d 594 (WY 1956).
[25] Repkie v State,
583 P.2d 1272 (WY 1978).
[25] W.S.
6-3-402(a&b).
[25] George Bohannon,
op.cit.
[25] 36A CJS, Fiduciary,
p. 383-385.
[25] 36A CJS, Fiduciary,
p. 389.
[25] W.S. 11-11-114.
[25] W.S. 34.1-4-386.
[25] 23/1990 (X.31) AB
hatarozat
[25] The Hungarian
Criminal Code is 1978 Act IV. It is typically abbreviated "BKT". This
provision would be cited as BKT chapter XII Article 166 provision (1), or BKT
166(1).
[25] BKT 166(2).
[25] BKT 166(2)(g).
[25] BKT 166(5)(a-h)
[25] BKT 167
[25] BKT 168
[25] BKT 166(3)
[25] BKT 166(4)
[25] BKT 171(1)
[25] BKT 171(2)
[25] BKT 171(2)(b)
[25] BKT 171(2)(c)
[25] BKT 171(3)(a)
[25] BKT 171(3)(b)
[25] BKT 171(3)(c)
[25] BKT 171(3)(c)
[25] BKT 171(4)
[25] BKT 175(1)
[25] BKT 175(2)
[25] BKT 175(3)
[25] BKT 175(4)
[25] BKT 175(5)
[25] BKT 175(6)
[25] BKT 175(7)
[25] BKT 180(1)
[25] BKT 180(2)
[25] BKT 180(2)
[25] BKT 170(1)
[25] BKT 170(7)
[25] BKT 170(2)
[25] BKT 170(3)
[25] BKT 170(3)
[25] BKT 170(4)
[25] BKT 170(5)
[25] BKT 170(6)
[25] BKT 172
[25] BKT 172
[25] BKT 173
[25] BKT 195
[25] BKT 197(1)
[25] BKT 197(2)
[25] BKT 197(3)
[25] BKT 198
[25] BKT 201
[25] BKT 201
[25] BKT 169
[25] BKT 169(2)(c)
[25] BKT 169(4)
[25] MT 351
[25] MT 351
[25] MT 351
[25] MT 351
[25] MT 196-7.
[25] Kent, op.cit., p.
vi.
[25] Ibid., p.
vi.
[25] Oliver Wendell
Holmes, Jr., On Common Law & other writings, p. 5.
[25] Ibid. p.
ix.
[25] Paul's efforts to
reconcile Jewish legalism and Christian faith ended somewhere after the second
Jerusalem conference in Acts 9. He
wrote the Letter to the Galatians, claiming the fulfillment of the law, before
he was called to Macedonia in Acts.
[25] Smith, op.cit.,
259-261.
[25] Ibid., p.
261.