The Trial of Jesus. Walter M. Chandler

      MOSES AND THE LAW (MICHAEL ANGELO)

CHAPTER I

      HEBREW CRIMINAL LAW—MOSAIC AND TALMUDIC

       Table of Contents

       THE Pentateuch and the Talmud form the double basis of Hebrew jurisprudence. "The wisdom of the lawgiver," says Bacon, "consists not only in a platform of justice, but in the application thereof." The Mosaic Code, embodied in the Pentateuch, furnished to the children of Israel the necessary platform of justice; ancient tradition and Rabbinic interpretation contained in the Talmud, supplied needed rules of practical application. Employing classic terminology, it may be said that the ordinances of Moses were the substantive and the provisions of the Talmud were the adjective laws of the ancient Hebrews. These terms are not strictly accurate, however, since many absolute rights are declared and defined in the Talmud as well as in the Pentateuch. Another definition, following the classification of Roman legists, describes Mosaic injunction as the lex scripta and Talmudic provision as the lex non scripta of the Commonwealth of Israel. In other words, the Pentateuch was the foundation, the cornerstone; the Talmud was the superstructure, the gilded dome of the great temple of Hebrew justice.

      Bible students throughout the world are familiar with the provisions of the Mosaic Code; but the contents of the Talmud are known to few, even among scholars and literary men. The most appalling ignorance has existed in every age among the Gentile uninitiated as to the nature and identity of this gigantic literary compilation. Henricus Segnensis, a pious monk of the Middle Ages, having heard and read many things about the despised heretical Talmud, conceived it to be a person and, in a transport of religious frenzy, declared that he would sooner or later have him, the Talmud, put to death by the hangman![48]

      For the benefit of the average reader as well as to illuminate the general subject, a short description of the Talmud will be given.

      Definition.—Many attempts have been made to define the Talmud, but all definition of this monumental literary production is necessarily inaccurate and incomplete because of the vastness and peculiarity of the matter treated. To describe it as an encyclopedia of the life and literature, law and religion, art and science of the Hebrew people during a thousand years would convey only an approximately correct idea of its true meaning, for it is even more than the foregoing descriptive terms would indicate. Emanuel Deutsch in his brilliant essay on the Talmud defines it as "a Corpus Juris, an encyclopedia of law, civil and penal, ecclesiastical and international, human and divine. It is a microcosm, embracing, even as does the Bible, heaven and earth. It is as if all the prose and poetry, the science, the faith and speculation of the Old World were, though only in faint reflections, bound up in it in nuce."

      Benny describes it as "the Talmud—that much maligned and even more misunderstood compilation of the rabbins; that digest of what Carlyle would term allerlei-wissenschaften; which is at once the compendium of their literature, the storehouse of their tradition, the exponent of their faith, the record of their acquirements, the handbook of their ceremonials and the summary of their legal code, civil and penal."

      To speak of the Talmud as a book would be inaccurate. It is a small library, or collection of books. "Modern editions of the Talmud, including the most important commentaries, consist of about 3,000 folio sheets, or 12,000 folio pages of closely printed matter, generally divided into twelve or twenty volumes. One page of Talmudic Hebrew intelligibly translated into English would cover three pages; the translation of the whole Talmud with its commentaries would accordingly make a library of 400 volumes, each numbering 360 octavo pages."[49]

      It would be well to bear in mind that the contents of the Talmud were not proclaimed to the world by any executive, legislative, or judicial body; that they were not the result of any resolution or mandate of any congregation, college, or Sanhedrin; that they were not, in any case, formal or statutory. They were simply a great mass of traditionary matter and commentary transmitted orally through many centuries before being finally reduced to writing. Rabbinism claims for these traditions a remote antiquity, declaring them to be coeval with the proclamation of the Decalogue. Many learned doctors among the Jews ascribe this antiquity to the whole mass of traditional laws. Others maintain that only the principles upon which Rabbinic interpretation and discussion are based, can be traced back so far. But it is certain that distinct traditions are to be found at a very early period in the history of the children of Israel, and that on their return from Babylonian captivity these traditions were delivered to them by Ezra and his coadjutors of the Great Assembly.

      This development of Hebrew jurisprudence along lines of written and oral law, Pentateuch and Talmud, Mosaic ordinance and time-honored tradition, seems to have followed in obedience to a general principle of juristic growth. Lex scripta and lex non scripta are classical Roman terms of universal application in systems of enlightened jurisprudence. A charter, a parchment, a marble column, a table of stone, a sacred book, containing written maxims defining legal rights and wrongs are the beginnings of all civilized schemes of justice. Around these written, fundamental laws grow and cluster the race traditions of a people which attach themselves to and become inseparable from the prime organic structure. These oral traditions are the natural and necessary products of a nation's growth and progress. The laws of the Medes and Persians, at once unalterable and irrevocable, represent a strange and painful anomaly in the jurisprudence of mankind. No written constitution, incapable of amendment and subject to strict construction, can long survive the growth and expansion of a great and progressive people. The ever-changing, perpetually evolving forms of social, commercial, political, and religious life of a restless, marching, ambitious race, necessitate corresponding changes and evolutions in laws and constitutions. These necessary legal supplements are as varied in origin as are the nations that produce them. Magna Charta, wrung from John at Runnymede, became the written basis of English law and freedom, and around it grew up those customs and traditions that—born on the shores of the German Ocean, transplanted to the Isles of Britain, nurtured and developed through a thousand years of judicial interpretation and application—became the great basic structure of the Common Law of England.

      What the Mosaic Code was to the ancient Hebrews, what Magna Charta is to Englishmen, the Koran is to Mahometans: the written charter of their faith and law. Surrounding the Koran are many volumes of tradition, made up of the sayings of Mahomet, which are regarded as equally sacred and authoritative as the Koran itself. These