The Emancipation of Massachusetts Part 2

The same is true of the Mosaic legislation which Dr. Budde curtly dismisses as impossible to have come from Moses, [Footnote: _Religion of Israel to the Exile_, 31.] as presupposing a knowledge of a settled agricultural life, which "Israel did not reach until after Moses'

death."

All this is an a.s.sumption of fact unsupported by evidence; but quite the contrary, as we can see by an examination of the law in question.

Whatever may have been the date of the establishment of the cities of refuge, I suppose that it will not be seriously denied that the law of the covenant as laid down in Exodus XX, 1, Numbers x.x.xV, 6, is at least as old as the age of Moses, in principle, if not in words; and this legal principle is quite inconsistent with, if not directly antagonistic to, all the prejudices and regulations, moral, religious, or civil, of a pure nomadic society, since it presupposes a social condition which, if adopted, would be fatal to a nomad society.

The true nomad knows no criminal law save the law of the blood feud, which is the law of revenge, and which prevailed among the Hebrews much earlier. In the early Saxon law it was expressed by the apothegm "_Factum reputabitur pro volunte_." The act implies the intent. That is to say, the tribe is an enlarged family who, since they have no collective system of sovereignty which gives them common protection by an organized police, and courts with power to enforce process, have no option but to protect each other. Therefore, it is inc.u.mbent on each member of the tribe or family to avenge an injury to any other member, whether the injury be accidental or otherwise; and to be himself the judge of what amounts to an injury. Such a condition prevailed among the Hebrews at a very early period; "And G.o.d blessed Noah and his sons, and said unto them: ... at the hand of every man's brother will I require the life of man. Whoso sheddeth man's blood, by man shall his blood be shed." [Footnote: Gen. IX, 1, 5, 6.] These customs and the type of thought which sustain them are very tenacious and change slowly. Moses could not have altered the nomadic customs of thought and of blood revenge, had he tried, more than could Canute. It would have been impossible. The advent of a civilized conception of the law is the work of centuries as the history of England proves.

We know not how long ago it was that the law of the blood feud was fully recognized in England, but it had already been shaken at the conquest, and its death-blow was given it by the Church, which had begun to tire of the responsibility entailed by the trial by ordeal or miracle, and the obloquy which it involved, at a relatively early date. For the purposes of the Church and the uses of confession it was more convenient to regard crime or tort, as did the Romans; as a mental condition, dependent altogether upon the state of the mind or "animus." Malice in the eye of the Church was the virus which poisoned the otherwise innocent act, and made the thought alone punishable. Indeed, this conception is one which has not yet been completely established even in the modern law. The first signs of such a revolution in jurisprudence only began to appear in England some seven centuries ago. As Mr.

Maitland has observed in his _History of English Law_, [Footnote: Vol.

II, 476.] "We receive a shock of surprise when we meet with a maxim which has troubled our modern lawyers, namely, _Reum nonfacit nisi mens rea_, in the middle of the _Leges Henrici_." That is to say somewhere about the year 1118 A.D. This maxim was taken bodily out of a sermon of Saint Augustine, which accounts for it, but at that time the Church had another process to suggest by which she a.s.serted her authority. She threw the responsibility for detecting guilt, in cases of doubt, upon G.o.d. By the ordeal, if a homicide, for example, were committed, and the accused denied his guilt, he was summoned to appear, and then, after a solemn reference to G.o.d by the ecclesiastics in charge, he was caused either to carry a red-hot iron bar a certain distance or to plunge his arms in boiling water. If he were found, after a certain length of time, during which his arms were bandaged, to have been injured, he was held to have been guilty. If he had escaped unhurt he was innocent.

Gradually, however, the ordeal began to fall into ridicule. William Rufus gibed at it, for of fifty men sent to the ordeal of iron, under the sacred charge of the clerks, all escaped, which certainly, as Mr.

Maitland intimates, looks as if the officiating ecclesiastics had an interest in the result. [Footnote: _History of English Law_, II, 599, note 2.] At length, by the Lateran Council of 1215, the Church put an end to the inst.i.tution, but long afterward it found its upholders. For example, the _Mirror_, written in the reign of Edward I (circa 1285) complained, "It is an abuse that proofs and compurgations be not by the miracle of G.o.d where other proof faileth." Nor was the principle that "attempts" to commit indictable offences are crimes, established as law, until at least the time of the Star Chamber, before its abolition in the seventeenth century. Though doubtless it is the law to-day. [Footnote: Stephen, _Digest of the Criminal Law_, 192.] And this, although the means used may have been impossible. Moreover, the doctrine is still in process of enlargement.

Very convincing conclusions may be drawn from these facts. The subject is obscure and difficult, but if the inception of the process of breaking down the right of enforcing the blood feud be fixed provisionally toward the middle of the tenth century,--and this date is early enough,--the movement of thought cannot be said to have attained anything like ultimate results before at least the year 1321 when a case is cited wherein a man was held guilty because he had attempted to kill his master, and the "_volunias in isto casu reputabitur pro facto_."

Measuring by this standard five hundred years is a short enough period to estimate the time necessary for a community to pa.s.s from the stage when the blood feud is recognized as unquestioned law, to the status involved in the administration of the cities of refuge, for in these cities not only the mental condition is provided for as a legitimate defence, but the defence of negligence is made admissible in a secular court.

"These six cities shall be a refuge, both for the children of Israel, and for the stranger, and for the sojourner among them; that every one that killeth any person unawares may flee thither....

"If he thrust him of hatred, or hurl at him by laying of wait that he die;

"Or in enmity smite him with his hand, that he die: he that smote him shall surely be put to death; for he is a murderer: the revenger of blood shall slay the murderer, when he meeteth him.

"But if he thrust him suddenly without enmity, or have cast upon him anything without laying of wait,

"Or with any stone, wherewith a man may die, seeing him not, and cast it upon him, that he die, and was not his enemy, neither sought his harm:

"Then the congregation shall judge between the slayer and the revenger of blood according to these judgments:

"And the congregation shall deliver the slayer out of the hand of the revenger of blood, and the congregation shall restore him to the city of his refuge, whither he was fled."... [Footnote: Numbers x.x.xV, 15, 20-25.]

Here we have a defendant in a case of homicide setting up the defence that the killing happened through an accident, but an accident not caused by criminal negligence, and this defence is to be tried by the congregation, which is tantamount to trial by jury. It is not left to G.o.d, under the oversight of the Church; and this is precisely our own system at the present day. We now come to the inferences to be drawn from these facts. Supposing that the Israelites when they migrated to Egypt, in the time of Joseph, were in the condition of pure nomads among whom the blood feud was fully recognized as law, an interval of four or five hundred years, such as they are supposed to have pa.s.sed in Goshen would bring them to the exodus. Now, a.s.suming that the Israelites during those four centuries, when they lived among civilized neighbors and under civilized law, made an intellectual movement corresponding in velocity to the movement the English made after the conquest, they would have been, about the time when the cities of refuge were created, in the position described in Numbers, which is what we should expect a.s.suming the Biblical tradition to be true.

To us the important question is not whether a certain piece of the supposed Mosaic legislation actually went into effect during the life of Moses, for that is relatively immaterial, but whether the Biblical narrative is, on the whole, worthy of credence, and this correlation of dates gives the strongest possible evidence in its favor. Very possibly, perhaps it may even be said certainly, the order in which events occurred may have been transposed, but, taken as a whole, it is impossible to resist the inference that the Bible story is excellent history and that, due allowance being made for the prejudice of the various scribes who wrote the Pentateuch in favor of the miraculous, where Moses was concerned, the Biblical record is good and trustworthy history, and frank at that;--much superior to quant.i.ties of modern doc.u.ments which we accept without question.

Of all the achievements of Moses' life none equals the exodus itself, either in brilliancy or success. How it was possible for Moses, with the a.s.sistance he had at command, to marshal and move a column of a million or a million and a half of men, women, and children, without discipline or cohesion, and enc.u.mbered with their baggage, beside their cattle, is an insoluble mystery. "And the children of Israel did according to the word of Moses; and they borrowed of the Egyptians jewels of silver, and jewels of gold, and raiment: ... And they spoiled the Egyptians. And the children of Israel journeyed from Ramses to Succoth, about six hundred thousand on foot that were men, beside children. And a mixed mult.i.tude went up also with them; and flocks and herds, even very much cattle."

They started from Ramses and Succoth.

The position of Ramses has been identified; that of Succoth is more questionable. Ramses and Pithom were fortified places, built by the Israelites for Ramses II, of the Nineteenth Dynasty, but apparently Succoth was the last halting-place before coming to the difficult ground which was overflowed by the sea.

The crossing was made at night, but it is hard to understand how, even under the most favorable conditions of weather, such a vast and confused mult.i.tude of women and children could have made the march in darkness with an active enemy pursuing, without loss of life or material. Indeed, even at that day the movement seemed to the actors so unparalleled that it always pa.s.sed for a miracle, and its perfect success gave Moses more reputation with the Israelites and more practical influence over them than anything else he ever did, or indeed than all his other works together. "And Israel saw that great work which the Lord did upon the Egyptians: and the people feared the Lord and believed the Lord and his servant Moses."

"And Miriam, the prophetess, the sister of Aaron; and all the women went after her with timbrels and with dances." Now Miriam was in general none too loyal a follower of her younger brother, but that day, or rather night, she did proclaim Moses as a conqueror; which was a great concession from her, and meant much. And Moses exulted openly, as he had good cause to do, and gave vent to his exultation in a song which tradition has ever since attributed to him, and has a.s.serted to have been sung by him and his congregation as they stood by the sh.o.r.e of the sea and watched the corpses of the Egyptians lying in the sand. And, if ever man had, Moses then had, cause for exultation, for he had seemingly proved by the test of war, which is the ultimate test to which a man can subject such a theory as his, that he had indeed discovered the motor which he sought, and, more important still, that he knew how to handle it. Therefore, he was master of supreme energy and held his right to command by the t.i.tle of conquest. This was the culminating moment of his life; he never again reached such exaltation. From this moment his slow and gradual decline began.

And, indeed, great as had been the momentary success of Moses, his position was one of extreme difficulty, and probably he so understood it, otherwise there would be no way to account for his choosing the long, difficult, and perilous journey by Sinai, instead of approaching the "Promised Land" directly by way of Kadesh-Barnea, which was, in any event, to be his ultimate objective. It may well have been because Moses felt himself unable alone to cope with the difficulties confronting him that he decided at any cost to seek Jethro in Midian, who seems to have been the only able, honest, and experienced man within reach. Joshua, indeed, might be held to be an exception to this generalization, but Joshua, though a good soldier, was a man of somewhat narrow understanding, and quite unfit to grapple with questions involving jurisprudence and financial topography.

And at this juncture Moses must have felt his own deficiencies keenly.

As a captain he made no pretence to efficiency. The Amalekites were, as he well knew, at this moment lying in wait for him, and forthwith he recognized that he had no alternative but to retire into the background himself and surrender the active command of the army to Joshua, a fatal concession had Joshua been ambitious or unscrupulous. And this was but the beginning. Before he could occupy Palestine he had to encounter and overcome numbers of equally formidable foes, a defeat by any one of whom might well be fatal. A man like Jethro, therefore, would be invaluable in guiding the caravan to spots favorable for action, from whence retreat to a place of safety would be open in case of a check. A reverse which happened on a later occasion gave Moses a shock he never forgot.

Furthermore, though Moses lived many years with Jethro, as his chief servant, he never seems to have travelled extensively in Arabia, and to have been ignorant of the chief trade routes along which wells were dug, and of the oases where pasture was to be found; so that Moses was nearly worthless as a guide, and this was a species of knowledge in which Jethro, according to Moses' own statement, excelled. Meanwhile, the lives of all his followers depended on such knowledge. And Moses, when he reached Sinai, left no stone unturned to overcome Jethro's reluctance to join him and to instruct him on the march north.

More important and pressing than all, Moses was ignorant of how, practically, to administer the law which he taught. His only idea was to do all in person, but this, with so large a following, was impossible.

And here also his hope lay in Jethro. For when he got to Sinai, and Jethro remonstrated with him upon his methods, pointing out that they were impracticable, all Moses had to say in reply was that he sat all day to hear disputes and "I judge between one and another; and I do make them know the statutes of G.o.d, and his laws." Further than this he had nothing to propose. It was Jethro who explained to him a constructive policy.

On the whole, upon this a.n.a.lysis, it appears that in all those executive departments in which Moses, by stress of the responsibilities which he had a.s.sumed, was called upon, imperatively, to act, there was but one, that of the magician or wise man, in which, by temperament and training, he was fitted to excel, and the functions of this profession drove him into to intolerably irksome and distressing position, yet a position from which throughout his life he found it impossible to escape. No one who attentively weighs the evidence can, I apprehend, escape the conviction that Moses was at bottom an honest man who would have conformed to the moral law he laid down in the name of the Lord had it been possible for him to do so. Among these precepts none ranked higher than a regard for truth and honesty. "Ye shall not steal, neither deal falsely, neither lie one to another." [Footnote: Leviticus XIX, 11.] And this text is but one example of a general drift of thought.

Whether these particular words of Leviticus, or any similar phrases, were ever used by Moses is immaterial. No one can doubt that, in substance, they contained the gist of his moral doctrine and that he enforced the moral duty which they convey to the best of his power.

And here the burden lay, which crushed this man, from which he never thenceforward could, even for an instant, free himself, and which Saint Paul avers to be the heaviest burden man can bear. Moses, to fulfil what he conceived to be his destiny and which at least certainly was his ambition, was condemned to lead a life of deceit and to utter no word during his long subsequent march which was not positively or inferentially a lie. And the bitterest of his trials must have been the agony of anxiety in which he must have lived lest some error in judgment on his part, some slackness in measuring the exact credulity of his audience, should cause his exposure and lead to his being cast out of the camp as an impostor and hunted to death as a false prophet: a fate which more than once nearly overtook him. Indeed, as he aged and his nerves lost their elasticity under the tension, he became obsessed with the fixed idea that G.o.d had renounced him and that some horror would overtake him should he attempt to cross the Jordan and enter the "Promised Land." Defeated at Hormah, he dared not face another such check and, therefore, dawdled away his time in the wilderness until further dawdling became impossible. Then followed his mental collapse which is told in Deuteronomy, together with his suicide on Mount Nebo.

And thus he died because he could not gratify at once his l.u.s.t for power and his instinct to live an honest man.

CHAPTER II.

The interval during which Moses led the exodus falls, naturally, into three parts of unequal length. The first consists of the months which elapsed between the departure from Ramses and the arrival at Sinai. The second comprises the halt at Sinai, while the third contains the story of the rest of his life, ending with Mount Nebo.

His trials began forthwith. The march was hardly a week old before the column was in quasi-revolt because he had known so little of the country, that he had led the caravan three days through a waterless wilderness where they feared to perish from thirst. And matters grew steadily worse. At Rephidim, "And the people murmured against Moses, and said, Wherefore is this that thou hast brought us up out of Egypt, to kill us and our children and our cattle with thirst?" Not impossibly Moses may still, at this stage of his experiences, have believed in himself, in the G.o.d he pretended to serve, and in his mission. At least he made a feint of so doing. Indeed, he had to. Not to have done so would have caused his instant downfall. He always had to do so, in every emergency of his life. A few days later he was at his wits' end. He cried unto the Lord, "What shall I do unto this people? They be almost ready to stone me." In short, long before the congregation reached Sinai, and indeed before Moses had fought his first battle with Amalek, the people had come to disbelieve in Moses and also to question whether there was such a G.o.d as he pretended.

"And he called the name of the place Ma.s.sah, and Meribah, because of the chiding of the children of Israel, and because they tempted the Lord, saying, Is the Lord among us, or not?"

"Then came Amalek, and fought with Israel in Rephidim." [Footnote: Exodus xvii, 7, 8.]

Under such conditions it was vital to Moses to show resolution and courage; but it was here that Moses, on the contrary, flinched; as he usually did flinch when it came to war, for Moses was no soldier.

"And Moses said unto Joshua, Choose us out men and go out, fight with Amalek: to-morrow I will stand on the top of the hill with the rod of G.o.d in mine hand."

And Moses actually had the a.s.surance to do as he proposed, nor did he even have the endurance to stand. He made Aaron and Hur fetch a stone on which he should sit and then hold up his hands for him, pretending the while that when Moses held up his hands the Hebrews prevailed and when he lowered them Amalek prevailed. Notwithstanding, Joshua won a victory.

But it may readily be believed that this performance of his functions as a captain, did little to strengthen the credit of Moses among the fighting men. Nor evidently was Moses satisfied with the figure that he cut, nor was he confident that Joshua approved of him, for the Lord directed Moses to make excuses, promising to do better the next time, by a.s.suring Joshua that "I will utterly put out the remembrance of Amalek from under heaven." This was the best apology Moses could make for his weakness. However, the time had now come when Moses was to realize his plan of meeting Jethro.

"And Jethro ... came with his sons and his wife unto Moses into the wilderness, where he encamped at the mount of G.o.d: ... And Moses went out to meet his father-in-law, and did obeisance, and kissed him; and they asked each other of their welfare; and they came into the tent.

"And Moses told his father-in-law all that the Lord had done unto Pharaoh and to the Egyptians for Israel's sake, and all the travail that had come upon them by the way, and how the Lord had delivered them....

"And Jethro said, Blessed be the Lord, who hath delivered you out of the hand of the Egyptians.... Now I know that the Lord is greater than all G.o.ds.... And Aaron came, and all the elders of Israel, to eat bread with Moses' father-in-law before G.o.d."

It is from all this very plain that Jethro had a controlling influence over Moses, and was the proximate cause of much that followed. For the next morning Moses, as was his custom, "sat to judge the people: and the people stood by Moses from the morning unto the evening." And when Jethro saw how Moses proceeded he remonstrated, "Why sittest thou thyself alone, and all the people stand by thee from morning unto even?"

And Moses replied: "Because the people come unto me to enquire of G.o.d."

And Jethro protested, saying "The thing thou doest is not good. Thou wilt surely wear away, both thou and this people that is with thee: for this thing is too heavy for thee; thou art not able to perform it thyself alone.

"Hearken, ... I will give thee counsel, and G.o.d shall be with thee; Be thou for the people to G.o.d-ward, that thou mayest bring the causes unto G.o.d."

Then it was that Moses perceived that he must have a divinely promulgated code. Accordingly, Moses made his preparations for a great dramatic effect, and it is hard to see how he could have made them better. For, whatever failings he may have had in his other capacities as a leader, he understood his part as a magician.

He told the people to be ready on the third day, for on the third day the Lord would come down in the sight of all upon Mount Sinai. But, "Take heed to yourselves that ye go not up into the mount, or touch the border of it: whosoever toucheth the mount shall be surely put to death:

"There shall not an hand touch it, but he shall surely be stoned or shot through; whether it be beast or man, it shall not live: when the trumpet soundeth long, they shall come up to the mount."