In the age of sacred caste the priest is likewise the law-maker and the judge, and as succeeding generations of ecclesiastics slowly spin the intricate web of their ceremonial code, they fail not to teach the people that their holy ordinances were received of yore from divine lips by some great prophet. This process is beautifully exemplified in the Old Testament: though the complicated ritualism of Leviticus was always reverently attributed to Moses, it was evidently the work of a much later period; for the present purpose, however, its date is immaterial, it suffices to follow the account the scribes thought fit to give in Kings.
Long after the time of Solomon, Josiah one day sent to inquire about some repairs then being made at the Temple, when suddenly, “Hilkiah the high priest said unto Shaphan the scribe, I have found the book of the law in the house of the Lord.” And he gave the book to Shaphan.
“And it came to pass, when the king had heard the words of the book... he rent his clothes.” And he was greatly alarmed for fear of the wrath of the Lord, because their fathers had not hearkened unto the words of this book; as indeed it was impossible they should, since they knew nothing about it. So, to find out what was best to be done, he sent Hilkiah and others to Huldah the prophetess, who told them that the wrath of the Lord was indeed kindled, and he would bring evil unto the land; but, because Josiah’s heart had been tender, and he had humbled himself, and rent his clothes, and wept when he had heard what was spoken, he should be gathered into his grave in peace, and his eyes should not see the evil. [Footnote: 2 Kings xxii.]
Such is an example of the process whereby a compilation of canonical statutes is brought into practical operation by adroitly working upon the superstitions fears of the civil magistrate; at an earlier period the priests administer justice in person.
Eli judged Israel forty years, and Samuel went on circuit all the days of his life; “and he went from year to year in circuit to Bethel, and Gilgal, and Mizpeh, and judged Israel in all those places.” [Footnote: 1 Samuel iv., vii.] But, sooner or later, the time must come when a soldier is absolutely necessary, both to fight foreign enemies and to enforce obedience at home; and then some chief is set up whom the clergy think they can control: thus Samuel anointed Saul to be captain over the Lord’s inheritance. [Footnote: 1 Samuel x.] So long as the king is submissive to authority all goes well, but any insubordination is promptly punished; and this was the fate of Saul. On one occasion, when he was in difficulty and Samuel happened to be away, he was so rash as to sacrifice a burnt offering himself; his presumption offended the prophet, who forthwith declared that his kingdom should not continue. [Footnote: 1 Samuel xiii.] After this the relations between them went from bad to worse, and it was not long before the priest began to intrigue with David, whom he presently anointed. [Footnote: Idem, xvi.] The end of it was that Saul was defeated in battle, as Samuel’s ghost foretold, for not obeying “the voice of the Lord;” and after a struggle between the houses of Saul and David, all the elders of Israel went to Hebron, where David made a league with them, and in return they anointed him king. [Footnote: 2 Samuel v.].
Thenceforward, or from the moment when a layman assumed control of the temporal power, the Jewish chronicles teem with the sins and the disasters of those rulers who did not walk in the way of their fathers, or who, in other words, were restive under ecclesiastical dictation.
So long as this period lasts, during which the sovereign is forced to obey the behests of the priesthood, an arbitrary despotism is inevitable; nor can the foundation of equal justice and civil liberty be laid until first the military, and then the legal profession, has become distinct and emancipated from clerical control, and jurisprudence has grown into the recognized calling of a special class.
These phenomena tend to explain the peculiar and original direction taken by legal thought in Massachusetts, for they throw light upon the influences under which her first generation of lawyers grew up, whose destiny it was to impress upon her institutions the form they have ever since retained.
The traditions inherited from the theocracy were vicious in the extreme. For ten years after the settlement the clergy and their aristocratic allies stubbornly refused either to recognize the common law or to enact a code; and when at length further resistance to the demands of the freemen was impossible, the Rev. Nathaniel Ward drew up “The Body of Liberties,” which, though it perhaps sufficiently defined civil obligations, contained this extraordinary provision concerning crimes:—
“No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, ... unlesse it be by virtue or equitie of some expresse law of the country waranting the same, ... or in case of the defect of a law in any parteculer case by the word of God. And in capitall cases, or in cases concerning dismembring or banishment according to that word to be judged by the Generall Court.” [Footnote: Mass. Hist. Coll. third series, viii. 216]