Chapter 10 – Of the Judge

God, the author of the Hebrew polity, having taken care by the congregation of all Israel, and by the senate of princes and elders, for the preservation of the liberties of the people, and for the wisdom of the administration of government, takes further care of the executive powers, that the wise resolutions which might be taken at any time, should be brought into due and timely execution; and that the force of the nation should be properly employed for the defense and protection of the whole.

The wisest nations have ever thought it convenient to lodge these powers either in one hand, or at least in a few, to prevent the delays and manifest inconveniences which would certainly arise from difference of sentiments in persons of equal authority, when things were to be brought into execution; so that almost all forms of government have found it necessary to have some commander in chief for their armies, and some first or principal magistrate or magistrates, either hereditary or for term of life, or years, to summon the national councils, to preside in them, and to see to a due administration of justice, according to law and equity.  Thus the Lacedaemonians had their kings, the Athenians their archons, the Carthaginians their Sussetes, the Romans their consuls, and the Hebrews their judges.

Very little is to be learned of the nature of a magistracy from its name, the kings of Lacedaemon had no more authority than the consuls of Rome; and among the Hebrews the words king and judge seem to be used promiscuously.  For, as Bertram, de Rep. Hebra. 104., observes, “the word king in some places means only a chief governor or captain, such as Moses, Joshua, and the other judges.”  Moses is in particular called king in Jesurun; and to judge Israel was of the same import, and meant the same authority.  See Deut.33:5.

The title of king in the after-times of the Hebrew government did signify a magistracy, different in some things from the magistracy of a judge, yet not in so many as are usually thought; but the difference between these magistracies is not to our present purpose.

The magistracy of judge, as it appears in the ancient Hebrew history, and in the administration of Moses and Joshua, was the true primitive constitution of the Hebrew government, and which the wisdom of the divine lawgiver had appointed as one principal part of the union of the tribes, in the power of their arms, in their national councils, and in the administration of national justice.

This part of the constitution was very soon neglected and altered: There was no king or judge in Israel, Judges 19:1.  The consequences of which, was very great disorders, civil wars among themselves, invasions from their enemies, by whom they were greatly oppressed, and they were made to serve their heathen neighbors.  This continued more or less, from a little after the death of Joshua and the elders of his time, till this part of the constitution was in some measure restored under Eli and Samuel; which was soon after changed into the office and authority of the after-kings.  When the chief magistracy became a hereditary office, and was enlarged with some new powers; but as that was not the original constitution, it is what our present enquiry is very little concerned in.  We are only concerned to examine how this magistracy was instituted and exercised by Moses and Joshua, in whose history alone we can expect to find a true account of it.  Agreeable to this true historical account, Couringius gives a general description of this magistracy in Moses, that “with respect to God who reserved to himself the supreme authority over the Hebrew nation, and who was himself properly king of Israel, Moses might not improperly be called his viceroy.  However, that Moses had a magistracy and an authority though depending in a peculiar manner on God himself, of consulting, appointing, commanding, and judging controversies in the Hebrew nation, is evident from the sacred history, which Moses himself wrote,” de Rep. Hebre. 249, Ld. Id. 250.

We may find a pretty exact account of the nature of this high office in the Hebrew government, in the appointment of Joshua successor to Moses, and the recognition of his authority by the people.

As to the appointment of Joshua, successor to Moses, the Lord said unto Moses, take thee Joshua the son of Num, a man in whom is the spirit, and lay thine hand upon him, and set him before Eleazar the priest, and before all the congregation, and give him a charge in their sight; and thou shalt put some of thine honor upon him, that all the congregation of the children of Israel may be obedient; and he shall stand before Eleazar the priest, who shall ask counsel for him, after the judgment of Urim before the Lord, at his word shall they go out, and at his word they shall come in, both he and all the children of Israel with him, even all the congregation, Num 27:18,19,20,21.

From this account, though short, we may yet, I think, conclude with sufficient authority, that this high office of the judge of Israel was not to be a hereditary office; nor did the policy of Moses take one step to perpetuate this great magistracy in his posterity or family.  One the contrary, the history informs us, that Moses himself desired the nomination of a successor before his death, and consulted the oracle upon it.  And Moses spake unto the Lord, saying let the Lord the God of the spirits of all flesh set a man over the congregation, which may go out before them, and which may go in before them, and which may lead them out, and which may bring them in, that the congregation of the Lord be not as sheep which have no shepherd, Num 27:15,16,17.

It appears then Moses could have no views of leaving this great and powerful office in the Hebrew government, an hereditary honor in his own family, in virtue of any hereditary claims or right.  It was highly convenient, this important office should be discharged by persons of great and eminent qualifications.  A man, “in whom was the spirit of courage, prudence, and the fear of God, with all other gifts necessary in an excellent governor,” says Bishop Patrick.  And therefore God, by the voice of his oracle, appoints Joshua the son of Nun, of another family, and even of another tribe, to be his successor; for Joshua was of the tribe of Ephraim.  Thus this high office of Moses, with all his authority and with all his policy, continued in his family no longer than his own life.

However, the great usefulness and importance of this magistracy in the Hebrew government, is strongly recommended as a material part of the constitution, that the congregation may not be as sheep without a shepherd.  To go in and out before them, to lead them out, and to bring them in, may mean the command in war and the direction of civil affairs; and it should seem to be understood so, when Moses is directed to put some of his honor on Joshua, that all the congregation of the children of Israel may be obedient.  What can be the meaning of putting some of the honor of Moses on Joshua, but what Bishop Patrick observes, “communicating some of his authority to him a present, and making him an associate in the government?”  Now it is plain, that Moses judged Israel by authority in civil affairs, as well as by the chief command of their armies.

It will further however appear, that how great so ever the authority of the Hebrew judge or stadtholder was, it could not be arbitrary.  Greater matters, as we have seen, were to be proposed to the congregation and princes, or senate of Israel; and he was also to consult the oracle, after the judgment of Urim before the Lord: so that the judge, as well as the congregation, were to be directed by the oracle.  The Rabbins have formed a general maxim from hence, “that no private person was allowed to consult the oracle; none but the king, the head of the great Sanhedrim, and such as were appointed in the name of all the people,” Selden de Synedr. L. m. g. 12. Ss. 4 V. I. 1723.

It is plain the judge is here directed to stand before the priest, who shall ask counsel for him.  In this all the successors of Moses were inferior to him.  He consulted the oracle himself, but all his successors were to ask counsel of the oracle by the high-priest.  So that the authority of the judge could not be arbitrary, when it was tempered by the approbation of the oracle, as well as by the advice and consent of the senate and people.  This use of the oracle may give light to some parts of the Hebrew history, which too commonly are mistaken, or not well understood.  In particular, this will shew a wise reason why the Hebrews were so often overcome and oppressed by their enemies, because they acted rashly, trusting to their own counsels without asking counsel of the oracle, or disregarding the directions given by it, which must be a very criminal behavior in this constitution.

We may yet more distinctly perceive the nature of this part of the Hebrew government, if we consider Joshua’s actual accession to the government.  Now after the death of Moses the servant of the Lord, it came to pass that the Lord spake unto Joshua the son of Nun, Moses’s minister; and encourages him to take upon him the command of the Israelites, promising there shall not be any man able to stand before thee, all the days of thy life; as I was with Moses, so I will be with thee, I will not fail thee nor forsake thee, Joshua 1:1,5.  Thus Joshua was in a very solemn manner confirmed in his office by the voice of the oracle; on this occasion he sends for the tribes of Reuben, Gad, and the half tribe of Manasseh, who were settled in the country east of Jordan, to direct them to pass with their brethren over that river, and to assist them in taking possession of their portion on the western side.  Now the authority they acknowledged in Joshua as judge, is thus expressed:  And they answered Joshua, saying, all that thou commandest us, we will do; and whithersover thou sendest us, we will go.  According as we hearkened unto Moses in all things, so will we hearken unto thee only:  the Lord thy God be with thee, as he was with Moses.  Whosoever he be that doth rebel against thy commandment, and will not hearken unto thy words in all that thou commandest him, he shall be put to death; only be strong and of a good courage, Joshua 1:12-18.

This seems, say Bishop Patrick, to be the voice of all the people, and of their elders, or a decree made by the elders, as the Jews understand it.  It is most likely, this was a transaction with the whole people of Israel, or with the whole congregation; and so it will be the legal form, in which they recognized the authority of Joshua.  Hence, a flagrant disobedience to the commands of the judge, was a capital offence; for tho’ the judge had not arbitrary power, but was to act by advice of the oracle, and consent of the princes and congregation; yet for any private person, or for any number of private persons, to refuse obedience to the orders of the judge, was a violation of all order and government, a kind of mutiny and desertion, which in all wise governments have always been punished as capital crimes.

The authority then of the judge was very great.  As a general in war, he had the chief command of the army: as the chief civil magistrate, he summoned the senate, and the congregation of the people, proposed the public affairs unto them, as a first senatorian magistrate; and acted in all things as viceroy, or stadtholder of Jehovah the king of Israel.  He had that authority in war, as general, and in public affairs of state, presiding in their councils, and executing their resolutions, that the executive power of the government was principally lodged in his hands.

Thus the scriptures themselves represent this office to us.  It must be very unfair to impute to this institution any faults whatsoever, which are owning solely to a corruption or alteration of it:  whether under the judges, soon after Joshua, to the election of Saul, or from thence during the government under the kings.  It would be too long to shew in particular, wherein those governments departed from the original constitution; it may be sufficient to make one general remark: that what the Hebrew nation suffered for omitting this part of their constitution, taught them the necessity of reviving it in some form or other; and what they suffered afterwards plainly shewed, that the alteration made in this office, were very far from amendments.  It might easily be made to appear, from the weak state of the Hebrews under occasional judges, raised only for a time, and whose authority reached but a part of the nation, and from the fatal rent of the kingdom of Israel, from the kingdom of Judah, owning to the resolution of Rehoboam, to follow the councils of private men and favorites, against the national council and congregation; who well understood their own power, though he was so weak as not to know it, or so obstinate as not to regard it.

I shall leave this part of the Hebrew constitution, with a short summary of the nature of this office, in the words of the very learned Calmet, “ it (the authority of the judges) reached both to affairs of war and peace.   They determined causes with absolute authority, but they had no power to make new laws or impose new taxes on the people.  They were protectors of the law, defenders of religion, avengers of crimes, especially of idolatry; yet still without show, without pomp, without followers, without equipage, unless their own estates enabled them to have a number of servants conformable to their dignity.”  But this could seldom happen; for, as our author further observes, “The revenues of their office consisted in the presents that were made to them; they had no other settled revenue, nor did they raise anything from the people,” Dict. V Juges.

Here then was a magistrate of great service in uniting the councils and forces of the Hebrew nation; and what may deserve a particular reflection, a magistrate of such authority as was sufficient to prevent any ambitious designs of any other magistrates, how great or powerful so ever, from taking place, whether of the princes of the tribes, or of any of the more powerful tribes, or of the high-priest, whatever you will suppose their authority to be.  For the chief authority both in affairs of war and peace being lodged in his hands, all other persons were under obligations of obedience to him, and flagrant disobedience to him was a capital crime by the constitution; and as he had the chief command of all Israel as an army, what ambitious views could be put  in execution without a general revolt of all the tribes, hardly possible when the tribes were under the command of different princes, who could have no common interests or ambition to unite them, but must rather have opposite interests and ambition, unless they should be united in preservation of the constitution and the common national liberty, if the judge should attempt to stretch his power and authority beyond its legal bounds set to it by the constitution.

Yet on the other hand, this constitution has taken the utmost care, and with all the marks of political wisdom, that the judge should not have it in his power to stretch his authority beyond its legal bounds; for his authority was tempered by the oracle, and by the advice and consent of the Hebrew senate and people.  He had no power to alter or change any laws, nor to make any new one as occasion might offer to strengthen his interest, or to repeal any old law that might stand in his way.  The very persons who had the rank of his counselors, were commanders of the hosts of Israel; and the whole army of Israel consisted of none but the freeholders of Israel.  There was no such thing as a soldiery, either of men or officers, who were listed en solde, or for pay; nor had the judge anything to pay them with, if there had been any to be hired: for no Israelite could increase his estate by the constitution, in virtue of the universal and perpetual agrarian law; and no man could make a great estate any other way, in a country where there was no foreign trade, and where interest of money, if anyone could be supposed to have much, was most strictly prohibited by law.  And when, finally, he could not, on any pretence whatsoever, raise money by a tax on the people.  For the people were liable to no taxes, but what they paid by the original constitution to the temple and Levites; which was the whole pub-lic revenue, and civil list of the Hebrew government.

But these reflections will deserve a more particular consideration in another place.