We are still at the stage where the reference of a cause to an arbiter is purely voluntary, and neither party is legally bound by the decision
614
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given. But the force of public oiiinion was exerted increasin^'ly on the side of law and order. The actual execution of justice was left to the injured party, and in the case of 'manifest' crimes like open murder and house-breaking ancient codes interposed no check on summary vengeance ; but where the least doubt existed, and the accused claimed the privilege of trial, society demanded clear evidence of his guilt, at the same time seek- ing to control the fierce impulses of the avenger by limiting punishment to the responsible wrong-doer, and making the penalty correspond as nearly as possible to the gravity of the offence ; in other words, replacing the principle of unrestricted vengeance by the ius tnlionis — ' an eye for an eye, and a tooth for a tooth.' This higher platform of justice is represented by the simple courts that survive to the present day among the Arabs of the desert, and in the primitive village communities of Southern Russia. The suspected offender is haled before the council of elders, presided over by the local sheikh or village headman. As the result of a sharp canvassing of the facts and testing of evidence, often supported by oath, and in earlier times by the ordeal of battle, fire, or water, a decision is arrived at, inspired by that swift instinct for justice so characteristic of the primi- tive mind, which the condemned party can evade only at the cost of expulsion from his kindred and tribe.
2. Hebrew procedare. — The roots of Hebrew justice are embedded in the primeval principle of reprisals. Thus the patriarchal legends of Israel claim among that people's ancestors the Bedouin chieftain Lamech, whose standard of vengeance was a life for a bruise, and seventy-and-seven lives for one (Gn 4^'-). But from the very dawn of national history the principle was restricted by the ius talionis, while summary execution wa^ forbidden, except in the case of the red-handed criminal (Ex 21'-i'-, Dt IQ""-), or the son who defied his parents' authority (21'*^-). Disputed cases were brought before the headman or leader of the people, who, in his combined capacity of priest and judge, submitted them to God (for "decision by oracle, oath, or ordeal), and in His name gave authoritative sentence (cf. Ex IS'^*). Such resort to the 'ordeal' of Divine judgment continued to be made in difficult questions (cf. 22'°'-, Nu S""-, Jos T^«-, 1 S 143"f-) ; but ordinary cases were decided by the 'elders' (i.e. the heads of families) seated as a formal court of justice. The institution of judgment by wise and able 'elders' is by the Elohistic writer ascribed to Moses, acting on the advice of his father-in-law Jethro (Ex IS""-). and appears in full force with the settlement of the people in Palestine. The procedure before these 'courts' was much the same as among other primitive nations. A formal charge or complaint must first be lodged by the injured party in the case, who forthwith summoned, or forcibly dragged, the offender before the elders. In grave matters of blasphemy or notorious crime, the person accused might be openly denounced by ' witnesses ' in presence of the people (cf. 1 K 21'^). At a later date accusations were, occasionally at least, pre- sented in writing (cf. Job 3P^). The case was debated before the elders seated in judgment, usually in the market-place in front of the city gate, and therefore in full audience of the citizens. In times of social disorder, as the prophets lament so frequently, justice could be bought and sold for money (cf. Am 6'^ Is 5", etc.); but as a rule judicial procedure in Israel was marked by a stern regard for right. Each party was allowed the fullest freedom to present his case (3'i) before the judges. The strongest emphasis was placed on the character of the evidence given by each. If
tangible proofs were not forthcoming, the presence of competent witnesses was encouraged by every means. A solemn adjuration was laid upon the eye-witness ; and he that refused to tell what he had seen or heard was accounted a criminal (Lv 5', Pr 29^). The defendant's rights were carefully safeguarded. In the pricis of rules laid down in Deuteronomy, no doubt as the formulation of ancient practice, the testimony of two witnesses at least is required for condemnation. ' One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that hesinneth : at the mouth of two witnesses, or at the mouth of three witnesses, shall a matter be established ' (Dt 19'*). Even the evidence of two or three witnesses must not be accepted without proof. The judge is to examine their testimony as they stand 'before the Lord' (i.e., doubtless, on oath administered by the priest), and to carry out on the person of the false witness ' as he had thought to do unto his brother,' thus putting away such evils from the midst of the people (vv.'"*-). Later laws excluded the evidence of women and slaves, that of the former, according to Josephus, ' on account of the levity and boldness of their sex,' and of the latter ' on account of the ignobility of their soul' [Ant. IV. viii. 15).