_Justice In Israel_

The justice aimed at in Israel was, therefore, _impartial_ and _accessible_. We have still to inquire whether it was _merciful_ or cruel in its infliction of punishment. Dr. Oort says it was a hard law in this respect, but one is at a loss to see how that view can be sustained. There is no mention of torture in connection with legal proceedings, either in the history or in the legislation. Nor is there any instance mentioned in which an accused person was imprisoned until he confessed. Indeed imprisonment would not appear to have been a legal punishment in Israel, nor in any antique state. The idea of providing maintenance for those who had offended against the law was one which could never have occurred to any one in antiquity. Prisons are, of course, frequently mentioned in Scripture; but they were used, up to the time of Ezra, only for the safe-keeping of persons charged with crime till they could be brought before the judges. Sometimes, as in the case of the prophets, men were imprisoned to prevent them from stirring up the people; but this procedure was nowhere sanctioned by law. Further, the crimes for which the punishment prescribed in the ancient law was death were few. Idolatry, adultery, unnatural lust, sorcery, and murder or manslaughter, together with striking or cursing parents and kidnapping--these were all. Considering that idolatry and sorcery were high treason in its worst forms, so far as this people was concerned, and that impurity threatened the family in a much more direct and immediate fashion then than it does now, while the people were naturally inclined to it, one must wonder that the list of capital crimes is so short. Contrast this with Blackstone's statement in regard to England (quoted _Ency. Brit._, iv., p. 589): "Among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared by Act of Parliament to be felonies without benefit of clergy, or, in other words, to be worthy of instant death." It is only in comparatively recent years that the punishment of death has been practically restricted to murder in England. Yet that is almost the case in the ancient Jewish law; for the exceptions are such as would reappear in England if it were more sparsely populated and manners were rougher. In Australia, for example, highway robbery under arms and violence to women are capital crimes, just because the country is sparsely inhabited and the households unprotected. Nor were the modes of death inflicted cruel. Only three--viz. impalement, and burning, and stoning--appear to be so. But it may be believed that in the cases contemplated by the law death in some less painful manner had preceded the two former, as is certainly the case in Josh. vii. 15 and 25, and in Deut. xxi. 22. As for the latter, it must have been horrible to look upon, but in all probability the criminal's agony was rarely a prolonged one. The other method of execution, by the sword namely, was humane enough. Dr. Oort tells us that mutilations were common; but his proof is only this, that in the treaty between the Hittite king and Rameses II. we read, concerning inhabitants of Egypt who have fled to the land of the Hittites and have been returned, "His mother shall not be put to death; he shall not be punished in his eyes, nor on his mouth, nor on the soles of his feet." The same provision is made for Hittite fugitives. From this evidence of the custom of surrounding peoples, and from the fact that the _jus talionis_ is announced in the Scriptures by the familiar formula, "Eye for eye, tooth for tooth, hand for hand, foot for foot," Dr. Oort draws this conclusion. But he appears to forget that the _jus talionis_ was common to almost all the peoples of the ancient world, and is referred to in the Pentateuch, not as a new principle, but as a custom coming down from immemorial time. Consequently, though there must once have been a time in which it was carried out in its literal form, that time probably was past when the laws referring to it were written. In Rome, and probably in other lands where this custom existed, it early gave place to the custom of giving and receiving money payments. Most probably this was the case in Israel, at least from the time of the Exodus. For the new religion introduced by Moses was merciful. But these references to the principle of retaliation tell us nothing as to the frequency or otherwise of mutilation as a punishment. No instance of mutilation being inflicted either as a retaliation or as a punishment occurs in the Old Testament, and the probability is that cases were never numerous. Apart from retaliation they are never mentioned; and we may, I think, set it down as one of the distinctive merits of the Israelite law that it never was betrayed into sanctioning the cutting off of hands or feet or ears or noses as general punishment for crime. But so far as the principle of the _lex talionis_ was retained, its effect was wholesome. It was a continual reminder that all free Israelites were equals in the sight of Yahweh. And not only so, it enforced as well as asserted equality. Any poor man mutilated by a rich man could demand the infliction of the same wound upon his oppressor. He could reject his excuses, and refuse his money, and bring home to him the truth that they had equal rights and duties.