INTRODUCTION

A

THE STUDY OF LEGAL ORIGINS

The study of a nation's history and traditions has always been regarded as of great significance. In an especial sense this truth is applicable to the study of legal origins. Cultural development and growth in the fundamental ideas of justice and humanity are perhaps better illustrated in the laws of a people than in any other one thing. The genius of a people, their most intimate thought, their very life blood, are crystallized in their laws. The study of Israel's origins is not only interesting in itself, but these origins acquire an enhanced importance from the growth of religious ideas which they illustrate. How a small Semitic tribe through long wanderings in the desert and countless hardships developed the highest conception of God and the noblest religious literature of the ancient world is a strange and thrilling story, of the most absorbing interest. We find there the gradual growth of pure monotheism, the eloquence of prophets, the codes of law-givers, the persistent urge toward a nobler religious utterance, which cannot be matched in any other story, either ancient or modern. Our own religious notions are derived directly from this insignificant tribe in an obscure corner of the ancient civilized world. Surely we may study the early history of this race with profit. Many of our own laws no doubt had their remote progenitors in Judea. And the study of these historic foundations may, by proper methods of teaching, be made of absorbing interest to the youth who throng our schools.

In recent years Archæology has become one of the most important and valuable of sciences. Wonderful are the treasures unearthed by numerous expeditions which have been fitted out at great expense to explore the sites of buried cities. To these patient explorers nearly every country in the East has yielded its riches, and our knowledge of ancient life has been immeasurably increased in this way. The story of these expeditions and a description of the results obtained constitute one of the most fascinating chapters in modern scholarship. In many instances the Bible narrative has been corroborated by these newest of revelations. In nearly every case they are of the most absorbing interest to the student of history, throwing special light on the origin not only of laws, but of modes of thought and habits of living which afford us a fairly accurate knowledge of ancient life.

Fresh proof has also been furnished by these studies of the way in which laws come into being. Instead of sudden revelations or the promulgation of fully developed codes they show us that laws have their evolution; they grow out of the soil of national conditions, both physical and racial, such as climate, geographical position, rainfall, occupation and national temperament and ideals. These determine almost automatically the legal regulations which shall be established, and how these regulations shall change with changing conditions of national life. If a nation is largely agricultural the laws will relate chiefly to the tenure of land, its cultivation and the distribution of its products, and the contracts necessary to foster and encourage the tilling of the soil and the raising of domestic animals. Religious ceremonies will likewise relate largely to feasts of the seasons, determined by crop periods, and astronomical occurrences.

Such was the life of the ancient Jews. They were almost wholly nomads in their earlier history, farmers and herdsmen after they settled in Canaan. Both their laws and religion were determined by these facts, as the

following pages will amply illustrate. The careful reader will also note, what indeed is inevitable, that the Jews had few laws relating to trade and commerce. The Jews were not a trading people and had little need for commercial or maritime law. They had no ships with which to trade with Alexandria or Tarshish; no caravans to cross the Syrian desert to Nineveh or Ur. Their habits of life were simple, their occupations few, their needs small. And their laws were an exact reflex of these dominant features in their national character and life.

There is still another fact which should be observed by the student of history. Laws follow national development instead of preceding it. Laws grow out of the needs of a people; they are made to preserve rights already acquired and to prevent new wrongs and injustice that may be devised. They cannot anticipate the direction or rate of growth of national needs. Rarely if ever has a ready-made code of laws been imposed upon a people by a higher power with any success. The complex conditions of society cannot be met by preconceived theories. Laws must follow the national consciousness and instinct, struggling as that instinct does with ever new conditions and unexpected wants. Laws thus enacted clothe a people as a garment and are necessarily and wisely conservative.

Examine carefully Jewish law at any stage of the national history and you will know the conditions in which the Jews lived in the preceding age with almost the certainty of a mathematical demonstration.

The Law, representing as it did the national ideals and instinct, and changing as it did with national needs, thus became the bond which held the Jewish race together as with bands of iron through all the varied centuries of national existence.

B

KINDS OF LAWS

Suppose a new invention such as the aeroplane comes into existence. At once new problems arise for solution. Who may operate the new machines? What rules shall regulate their passage over cities or the open fields? Who shall be held responsible for damage caused by collision or accident? Out of these and other conditions there will gradually emerge certain rules for the safe operation of aeroplanes which in time will be crystallized into custom. In the legal conflicts that will inevitably follow the courts will recognize these customs so far as they are founded upon justice and new rules will be laid down in their decisions. These precedents will be followed by courts in other cases until they become the wellsettled law. Some of these will be enacted into statute law by local legislatures, or the national law making power. Ultimately the whole body of decisions, customs and statutes will be arranged into an orderly system. This will constitute a code. In such a way have grown up the great codes which in modern times govern the most important operations of modern states. They represent the final consensus of opinion of society on a given subject, its highest concept of right and justice. From facts to laws, this is the normal way in which society spins its laws out of its needs and conditions.

This same process is apparent in ancient Israel. There are at least four distinct strata of laws visible in the Pentateuch. New conditions arose, new laws were framed and were gradually compiled into codes, to which a great sanction was devised and added, the authority of Moses. There must be from time to time re-codifications of the law, to embody changed conditions, to meet new requirements, to eliminate contradictions, and to introduce harmony in procedure as well as the letter of the Law. In