04. Judicial and Executive Functions
Judicial and Executive Functions
Chapter III
Although, by the theory of a Moslem government, there should be no other courts of justice than those for the administration of the sacred or written law, yet there is in Persia another branch of judicature, which is called Urf—a word meaning known, or customary—and this name refers to the principle by which the secular magistrates who administer it should be guided in their decisions, which is that of custom or precedent. This law, if such it may be termed, out of deference to the sacred code, which is theoretically the sole law of the land, is left unwritten. It is not the same in all parts of the kingdom, because it has reference to local, as well as to common usages. The king, as temporal monarch, is at the head of this customary law, which may, indeed, be regarded through all its branches as an emanation of the royal authority, although it is administered on principles that are grounded on a professed regard for the habits and prejudices of the people. This system is considered to have originated in the desire of the princes, although converts to Mohammedanism, to preserve the laws and traditions they inherited from their fathers, and the temporal power connected with them. Just as among the Hebrews, these, doubtless, continued to be preserved as a body of customary usages, handed over from the period before the law was given by Moses. There is reason to think, that those portions of that law which regulate the relations between man and man, were in part new regulations required by the designed alteration in the condition of the people from the pastoral to the agricultural mode of life, and in part modifications of customs which previously existed; and that a large body of those already in operation, which were approved, and it was, therefore, needless to alter, were purposely unmentioned in the law, but were left to their natural operation in the established usages of the people. Such old customs, and the decisions of judges and kings in particular cases, which, although not binding law, would be considered as furnishing materials for judgment, probably formed a system not unlike the Urf of Persia, and was administered in the same manner. The relative weight of the sacred and the customary law, or rather the preeminence of its practical operation, was, probably, as in Persia, determined very much by the temper and power of the sovereign. In that country, there have been times when the religious zeal of the monarch has caused almost every case to be referred to the ecclesiastical judges, and at others the whole authority has been vested in the secular magistrates. This state of things must necessarily engender strifes of jurisdiction. The administrators of the Shariah, or divine law, as it is called, are disposed to consider that they are entitled to take cognizance of all causes whatever, and regard the jurisdiction of the secular courts as an intolerable usurpation of their rights. The latter, on the other hand, under the encouragement of successive princes, have limited the jurisdiction of the ecclesiastical courts to disputes about religious ceremonies, inheritance, marriage, divorce, contracts, sales, and in general all civil cases, reserving to themselves the decision in all proceedings respecting murder, theft, fraud, and every crime that is capital, or that can be regarded as involving a breach of the public peace. And something like this must be the ultimate adjustment in most cases, where there are ecclesiastical and secular jurisdictions in conflict with each other. Do we not discover indications of a somewhat similar state of things in the judicial arrangements of the good king Jehoshaphat? 2 Chronicles 19:5. We are told that he established “judges in the land throughout all the fenced cities of Judah;” it is not said whether they were of the Levitical body or not, but further on we learn that at Jerusalem, “did Jehoshaphat set of the Levites, and of the priests, and of the chief of the fathers of Israel, for the judgment of the Lord, and for controversies,” 2 Chronicles 19:8. Now the “chief of the father” were the heads of families and tribes, to whom, under the old patriarchal system, the right of judgment naturally belonged. Here they are named as judges, certainly not of the ecclesiastical matters which belonged to the Levitical body, but, doubtless, of civil and criminal causes. The difference of jurisdiction is, indeed, indicated in the two classes—one “for the judgment of the Lord,” and one “for controversies;” that is, the priests and Levites for the judgment of the Lord, and the fathers of Israel for controversies. The distinction is confirmed further on, where it appears that each branch of judicature had a separate head; for Jehoshaphat, in his impressive charge to the newly appointed judges, says, “Behold, Amariah the chief-priest is over you in all matters of the Lord; and Zebadiah the son of Ishmael, the ruler of the house of Judah, for all the king’s matters,” 2 Chronicles 19:11. This seems to intimate, that other matters than those characterized as “the judgment of the Lord,” were under the special supremacy of the king, like the Urf in Persia. Perhaps the distinction of the two kinds of judicature is further indicated in another clause of the king’s charge, in which, it will be observed, he is addressing the appointed administrators of both—“What cause soever shall come to you of your brethren that dwell in their cities, between blood and blood, between law and commandment, statutes and judgments,” etc., 2 Chronicles 19:10. Here “the law” seems, by the antithesis, to be distinguished from “the commandment,” and “the statutes” from “the judgments;” and if so, “the law” of the one clause, and “the statutes” of the other, may be supposed to describe the written law—that of Moses—and “the commandments” of the one clause, and “the judgments” of the other, the popular customary law, composed as already described.
It is further to be observed, that each branch of the law or judicature has at its head the proper official chief. Over “the judgment of the Lord” is the high-priest; and over “the king’s matters” is the great hereditary chief, or prince of the tribe of Judah, which tribe, with some adjuncts, composed the kingdom. The latter fact seems clearly to indicate that those called “the king’s matters,” were not merely court matters; in such affairs the monarch himself, in all the courts of the east, personally judges: and if it could be supposed that the king delegated that authority to another, it would be far more likely to some great officer of the court than to the great hereditary chief of the tribe, on whom, on the other hand, the administration of the customary law would naturally devolve, and the weight and authority of whose position would be of much importance in accrediting the decisions of judges acting under his presidency. Indeed, that the high-priest in the one case, and the chief of the tribe in the other, presided over these judicatures, seems to indicate that the position they occupied was recognized and proper, belonging to them of right, and which they had been used to exercise though in a less orderly plan than that which the king organized. In fact, although the king is said to have “set” the judges, it is clear that they were not arbitrarily chosen by him; for those set to administer one branch of the judicature were “the chief of the fathers,” that is, the chiefs of the great family branches of the tribe, over whom Zebadiah, “the ruler of the house of Judah,” was the natural president. Again, it is not said that the chief was “set” over this branch of the judicature, but the judges being “set,” they were, when addressed by the king, referred to Zebadiah, as their existing and proper president, just as the high-priest is referred to as the existing and proper superior of the Levitical branch of the judicature. The whole of the arrangement indicates that the matters to be judged were matters of common concern to the people in their cities, and not merely causes in which the court was interested, although distinguished as “the king’s matters,” in conformity with the general practice of the east, and even of the west, of regarding the sovereign as the real or nominal head of all secular law.
We have attended to the suggestions to which the state of things in Persia has afforded a clue, because the matter, as it respects the Hebrews, is one of considerable interest and importance, and we know not that the two-fold judicature, which we have shown to be at least probable, has been hitherto pointed out.
Let it not be supposed that in Persia the system of law which has been described forms any obligatory restraint upon the king himself. He is above the law; and it would not be much short of treason to assert that the king was not perfectly free to act at any time as seems best to him, towards any of his subjects, who hold their lives and properties at his disposal. Still, this rude theory of despotism is never carried out to the extent these words imply; and the reason is obvious—the authority is too important to be delegated in its fullness to others, and it is impossible for the sovereign to take all judgment into his hands. The great body of the people are, therefore, governed by the ordinary process of law, and the absolute power of the king is, in the full meaning, only experienced by his conquered enemies, his rebellious subjects, his own family, his ministers, public officers, civil and military, and the long train of his servants and domestics. All these hold their lives and properties at the entire disposal of the sovereign, who may seize their property, subject them to any punishment, or even put them to death, by a word or a sign, without examination or formal procedure of any kind whatever; and this is far from being a barren or nominal power, for scarcely a day passes in which it is not, in some shape or other, exercised.
But, besides this, the relation to the king, which employment under him, or alliance to him of any kind, creates, so far supersedes every other subjection, even to the law, that the king can, if he please, effectually shield an offender of any of these classes from the notice which the law might take of his crimes, if the king choose to leave them unpunished. He is the judge and punisher in all these cases, and no other tribunal is competent to move with reference to them. This absolute power, over the same classes, is common to nearly all eastern kings, and the constant notice of its operation has led many travelers to suppose that the same power existed over all classes without distinction, and they have thence been led to give ideas of more intense despotism than practically ever existed in any country. This error might be the more easily taken up from the fact, that a cursory inquiry into the subject would produce no denial or explanation, as the theory of government for the whole nation corresponds with the practice of government towards this part of it. But, in fact, in all other circumstances but these, the forms of written or customary law are observed in every instance of importance, especially in all capital cases, and the royal authority only interferes to direct the execution of the sentence or to pardon the offender. The king seldom oversteps the limits which usage thus prescribes to his power. He may do so sometimes without much censure, but he cannot habitually exercise the fullness of his despotic authority upon those whom usage has not subjected to it, without danger and discredit. The power of life and death, which the sovereign himself often exercises in a manner frightfully summary, is much more with caution
These distinctions are in themselves of some interest; and this is increased when we compare this state of things with the customs mentioned in the Bible. It is clear from that source, if we did not know it from history, that the ancient kings of Persia held the same power over the lives and properties of all persons in the public service. This is seen in the orders so promptly given by Darius for the execution of Daniel’s accusers, who were officers of the court; and by the equal promptitude of the doom pronounced by Ahasuerus upon Haman and his family. In the latter case, the king also seized the property of the condemned, and divided it between Mordecai and Esther, showing that the possessions as well as the lives of such persons were wholly in the royal power. The mode of disposing of it, by bestowing the property of the condemned on others, is quite in the present style, when the sovereign frequently grants that of a fallen favorite or officer to reward the services of someone about the court. This, indeed, has been often done in our own country.
There is no instance in Scripture of the arbitrary punishment by the Persian kings of any persons not in the public service, which may be taken to imply, at the first view, that the body of the people were, as at present, exempt from the arbitrary infliction of high penalties. It may, indeed, seem that the decree of Ahasuerus, for the extirpation of the Jews, is adverse to this conclusion; but, if we look more closely, it appears that they, as captives, and as charged with rebellious tendencies, formed one of the very classes which would, even at the present day, come under the irresponsible control of the sovereign. In other cases, we know from history that the Persian kings were, in fact, very anxious to secure the credit to be derived from the impartial administration of public justice. The king possessed the same powers in Israel, within the circle of the public service. We see the right over lives and possessions there exercised with a degree of decisiveness and vigor which makes us tremble for the liberties of the nation, and to fancy that it has fallen under a very harsh despotism. We naturally say, “If it be thus with the great ones at court, how is it with the great body of the people?” But all these instances are within the circle of the public service, or family connection, within which, alone, this despotism could operate, and the people no doubt remained subject to the operation of the ordinary law. Bad kings, unquestionably, overstepped the limits; but good kings, even in adhering to it, might, while exercising the privileges which usage everywhere conceded to them, evince much arbitrary power over life and substance within the immediate circle in which they moved. This was the case in the apparently arbitrary executions of Adonijah and Joab by Solomon, in which, however, the additional power over them existed which was derivable from their being members of the royal family. The power over property, even when not forfeited by capital execution, is shown in the way in which David deprived Mephibosheth of his estate, and transferred it to Ziba, and afterwards ordered that they should share it between them. That the kings did not venture to exercise any such power with reference to other properties, appears in the case of Naboth’s vineyard, to which we have already referred; yet it seems that, even in that instance, it was the fact that Naboth was executed for alleged treason, although he was not in public employment, caused the forfeiture of his estate to the crown.
Among the Israelites, also, as in Persia, it would seem that the king could screen from the ordinary operation of the law an offender belonging to the royal family or the court circle, when he did not himself choose to punish. This is obvious in the steps taken upon the daring assassination of Amnon by Absalom, whom the sovereign eventually restored to favor without subjecting him to the operation of the law; and that the inference in this instance is not erroneous, is shown from the pretended case submitted to the king in that very matter by the woman of Tekoa, who claimed for one of her sons, who had slain his brother, protection from the avenger of blood, and to whom the king pledged himself by an oath, “There shall not one hair of thy son fall to the earth,” 2 Samuel 14:11. This is the more remarkable, as the case was beyond the court circle, and dispensed with the fixed operation of the Mosaical law, which had, in such circumstances, left no doubt of the course to be pursued. This dispensing power was not likely to be much abused by so pious and just a man as David; but it was a dangerous precedent for him to set, and was likely to be, and in all probability was, much abused by ungodly kings.
Besides those cases which the king in Persia disposes of on the summary impulse of his passions or his judgment, in respect of the classes which have been designated, there are others which he feels bound to decide strictly on the evidence. Many important causes may be brought before him by appeal, and he reserves the right of judging in the capital crimes of murder and robbery, except where this part of the royal function has been delegated to any of the provincial governors. Hence, a considerable portion of the king’s time is passed in administering justice in the audience chamber of his palace, to which access is not difficult, and the extent of his occupation in this is proportioned in some degree to the reliance which the people have on his wisdom and justice, for there is then a great inclination in suitors to carry their cases, by appeal or consent, to the foot of the throne.
It is said that a Persian king, anxious to occupy his station well, seldom spends less than seven hours a day in public, in the discharge of his political, judicial, and ceremonial duties. This will suggest to the reader the case of David, whose character with his subjects, and his wish to satisfy them, brought so much judicial business to his palace, that, with all his diligence and zeal, it got so much into arrears as to bear the aspect of a neglect of justice, which the wily Absalom failed not to turn to the advantage of his own designs. Probably, David was unwilling, in the circumstances of his reign, to relieve himself by deputing this important regal function to others. Some ages ago, there was a court in the Persian metropolis which discharged most of the judicial functions of royalty; but the head of this court acquired so much influence and power, that the kings became alarmed, and reverted to the ancient practice of dealing with such cases in person.
How ancient the practice is there, is shown by the statement of the Greek historians, who inform us, that the Persian kings sat in judgment in many criminal and civil cases of importance, with the utmost anxiety to give a right decision. They heard the evidence with attention, and took some days to consider their judgment, during which the advice of those who were deemed learned in the law was taken. When the matter was one of life and death, the offence with which the delinquent was charged was not considered apart, but in connection with the whole course of his life, and he was cleared or condemned according to the preponderance of his merits or his crimes. This may remind us, from analogy, of a gross common error respecting the administration of the Divine judgment in the great day of decision, which those will have had occasion to learn, who go much among the people. This notion assumes, that we are then to be judged by the preponderance of merit or demerit during life; in heathenish ignorance of the fact, that we have no merits in which to appear before God, and that the soul is utterly undone which hopes for favorable judgment at his tribunal on any other ground than that abundant satisfaction for sin which was offered by his beloved Son, when he bowed his dying head upon the cross, and cried, “It is finished!” “Other foundation can no man lay than that is laid, which is Jesus Christ.”