Chapter 9 – Of the Senate of Israel
We have seen, that according to the Hebrew polity, there were elders in every city, as well as an assembly of the people; and that every Tribe had Princes and Heads, which made a provincial council of state, as well as war. Such an institution, for preparing matters, by counsel and advice of knowing men, for a general consent, which was to give authority to public resolutions and orders, was very necessary to the wisdom of government. To prevent rashness and precipitate judgments, to which popular assemblies are very subject, the freest and most popular governments have always therefore had Senates of some form or other, to prepare and ripen matters, and to propose them in some degree of maturity to the people for their consent.
There is so much mention in the Hebrew history of the princes and elders of the people, that there can be no question whether the Hebrew nation had a Senate of some form, or other. But what that Senate was, either as to the persons of whom it consisted, or as to the powers with which they were vested by the Constitution, is not so clear, nor quite so easy to be determined.
The Rabbinical writers have greatly darkened, and even confounded this question. They have given us their own chimerical imaginations, instead of real historical facts. For though they could have no other good foundation to build upon but the Scripture history, yet they have given such an account of their Sanhedrim as the Senate and supreme court of the Hebrew nation, as is nowhere to be found in the Scripture history, and is in many things absolutely inconsistent with it. We may then conclude concerning them and the authority of their accounts, in the words of a very learned and diligent author: “That the antiquity of the Rabbinical Sanhedrim is absolutely fabulous; that the prerogatives they ascribe to it, and most of the orders they mention for the execution of justice in it, are very ill supported, and very uncertain…That the true Sanhedrim or Senate of the nation, (our author is speaking of the modern Rabbinical form) having begun under the Macchabees, grew greater under the kings of the Hasmonaean family; and from a weak and tottering condition, in which it was at first, it rose up to such degree; of authority and power, that it became formidable to kings themselves,” Calmet, Dissert. sur la Police des Hebreux, vol 1
“But since it has pleased the Rabbins, (to use the words of the same author) to give us a chimerical description of their ancient government, and many learned interpreters have suffered themselves to be misled by their discourses, we are obliged to undeceive those, whom their name and their authority might impose upon,” id. Ib. Whoever has a mind to see more at large the weakness of the rabbinical account, and its inconsistence with the true Hebrew history, may find enough to satisfy them in the forementioned learned author.
To leave then the Rabbinical Sanhedrim to their admirers, let us consider what the true Hebrew history acquaints us, concerning their national council or Senate; which, together with the oracle, the judge and the Congregation of all Israel, made the States-general of the United Tribes of Israel.
For the better understanding of what so short an history affords us, it may be proper to look back to the State of the Hebrews while yet in Egypt, before their government was established by the Mosaical laws in the wilderness. For it is a very probable observation of the learned Bertram, “That the number of seventy elders appointed by the law of God, was not so much a new institution, as the continuation of a former usage; as God rather confirmed than new instituted many things at Mount Sinai, which were ancient customs of the fathers,” Bertram de Rep. Heb. p. 51.
“It is evident, says the very learned Bishop Sherlock, that every tribe had its own princes and judges, and that every prince or head of a tribe judged his own people; consequently every tribe had a scepter and lawgiver, as well as Judah. That this power in the tribes took place immediately upon the death of Jacob, may be collected from hence, that from this time all application and messages are not to the people, but to the elders of Israel.”
When Moses was first sent to the children of Israel, to deliver a message from Jehovah, and acquaint them that he had visited them, and seen that which was done unto them in Egypt; he is commanded to go and gather the elders of Israel together and say unto them, Ex 3:16. We find this direction exactly followed by Moses: And Moses and Aaron went and gathered together all the elders of the children of Israel, Ex 4:29. We have in the same period of the Hebrew history, while they were yet in Egypt, an account of the heads of the several families, or heads of their father’s houses, Ex 6:14ff.
The dignity then of Princes of Tribes and Heads of Families in the several Tribes, may well be taken for an ancient and well known custom, and which likely began upon the death of Jacob, the common father of all the Tribes. Then each Tribe began to have Princes and Judges, a scepter and a lawgiver of its own; and they were considered and addressed unto, as persons of chief dignity and principal authority in their respective Tribes; that these persons had an authority and jurisdiction, may appear from what one of the Hebrews said to Moses, Who made thee a prince and a judge over us? Ex 11:14. A Prince, it should seem, and a Judge in the common acceptation of the Hebrews was much the same. It appears also probable, that there was some sort of union between the Princes of the several Tribes, in whose counsels and directions the several Tribes were in some sort united into one body. For the proposal of Moses was to be made to them as elders of Israel, not as Princes of one particular Tribe. Moses called for all the elders of Israel, or he summoned the Princes and Heads of Families of the whole Hebrew nation. This direction concerning the Passover, was by them communicated to all Israel, was received and obeyed universally by all the nation, and the children of Israel went away; and as the Lord had commanded Moses and Aaron, so did they, Ex 12:21,28.
It is more over particularly observed that when God brought the children of Israel out of Egypt, it was in hosts, and by their armies. The self-same day it came to pass, that all the hosts of the Lord went out from the land of Egypt. And it came to pass the self-same day that the Lord did bring the children of Israel out of Egypt by their armies, Ex 12:41,51. This makes it evident, that when the children of Israel went out of Egypt, it was not as a tumultuous mob in confusion and disorder, but as hosts and an army, under proper commanders, and each with its own standard.
This seeming slight observation may yet be of great use to show, that in so short a time, on so sudden a march, with so great a number of people, they could not have gone out in order as hosts and an army, if there had not been some known officers, and form of discipline before. How could they else have known under what standard they were to march, or what particular officers were to command them? It should seem then, while they were yet in Egypt, the Princes of Tribes were acknowledged a sort of general officers of the Tribes, and the Heads of Families, subordinate officers in their respective families as parts of the hosts. So that the Tribe of Judah, for instance, as the host of Judah, was under the command of Nashon, Prince of Judah, Num 10:14.
When we see the use of these Princes and Elders of the Tribe of Israel, both for counsel and command, while they were yet in Egypt, and immediately after they went out of Egypt, we need not wonder to find very near the same order, dignity and authority continued in them. Here the wisdom of God seems to have confirmed ancient customs, rather than to have made new constitutions.
We are not to expect these Princes and Elders should have public courts and jurisdiction in the bondage or Egypt, yet they seem to have had some sort of political government among themselves, even there.
But the Jethronian prefectures, as they are usually called, and the court of seventy elders, which the Rabbins will have the original of their Sanhedrim, were very considerable new constitutions, and are necessary to be understood in some measure, in order to know the true nature of the Senate of the Hebrew nation.
When Jethro came to visit Moses in the wilderness, where he encamped at the Mount of God; he observed that Moses sat to judge the people, from the morning unto the evening, as in ancient times it was customary for chief magistrates to hear causes and administer justice in person. It is probable the judgment of so great a person as Moses, might be better esteemed and more quietly submitted unto, than the judgment of persons of lower reputation and authority, Ex 18:5. So Josephus understood it: They “not expecting such right from other judges, and when they lost their cause before such a judge, they bore it with an easy mind.” Josephus, Ant. Jud. 1…c. 3. Moses also might be desirous to give the people all the satisfaction he could; but as Jethro observed, this thing is too heavy for thee, thou art not able to perform it thyself alone, Ex 18:18. He advises therefore, that Moses would keep himself to greater matters; and as for the common causes, that were daily pleaded, he should appoint some judges, who in his stead should hear and decide them, and that these judges should be provided out of all the people, able men, such as fear God, men of truth, hating covetousness, Ex 18:21; that he should place such over the people to be rulers of thousands, rulers of hundreds, rulers of fifties and rulers of tens, and let them judge the people at all seasons…The hard causes they brought unto Moses, but every small matter they judged themselves, Ex 28:26.
These judges then seem to have been a sort of justices of peace in several divisions, probably taken from the military divisions of an host, into thousands, hundreds, fifties and tens. This was a model proper for them as an army marching, and not unsuitable to their settlement as tribes and families, in a sort of counties, hundreds and tithing’s. Perhaps our Old Saxon Constitution of Sheriffs in counties, hundredors or centgraves in hundreds, and deciners in decennaries, may give some light to this Constitution of Moses. Some have thought that those constitutions of the Saxons were taken from these laws of Moses, introduced, says my author, by Alfred, or his direction, Bacon of Eng. Government. P i. p 70.
Whoever will consider the advice of Jethro, without too much Rabbinical learning, or too much veneration for some great names, who, in these subjects implicitly follow the Rabbins; may, I think, truly perceive the reason of this Constitution, and the nature of the Constitution itself.
These inferior judges are generally supposed to have been chosen by the people, according to Josephus, approved of all the people according to Moses’ own direction, Take ye wife men, and understanding, and known among your tribes, and I will make them rulers over you, Deut.1:13. It should seem however, that although in this Constitution, persons are chosen to be judges for their wisdom and integrity; yet as they were to be persons known among their Tribes, it is greatly probable, that they were to be persons whose characters were more generally known than private persons, and therefore that they were chosen out of the officers. Thus these Judges will be a sort of Quorum, distinguished from the rest of the officers by a special commission of oyer and terminer, to hear and determine certain lesser causes brought before them in their several divisions.
It does not appear, whether these several judges and their courts were superior to each other, so that there lay appeals from the lesser to the larger, as from a lower court to an higher; may it not rather be designed to give persons liberty to chose before whom their cause should be heard, whether within their tithing or hundred, or if they had much greater opinion of the wisdom and integrity of the Judge of the thousand of Israel to which they belonged, they might, as they thought fit, be so far satisfied in choosing their own judge, now they had not the liberty of bringing the smaller causes immediately before Moses. However these Jethronian Prefectures, though they might be a plan of the provincial Judges, and so of the Senates of the cities in the provincial government, yet they could be no part, I conceive, of the States-general, in which all the Tribes were united.
This wise provision by the Jethronian Prefectures for the more easy and ready administration of justice, was instituted while Israel encamped at the Mount of God, either Horeb or Sinai, which were two names of the eastern and western sides of the same mountain. The children of Israel encamped there, about three months after their march out of Egypt through the Red Sea into the wilderness, and continued there about one whole year; but before the coming of Jethro, according to the computation of the learned Archbishop Usher, the Princes of tribes had made their offering, and the Tabernacle was erected, Usher. Annal. An anp C. U. 1490. I observe this circumstance as we go along, because it will appear of some use presently. The Israelites by direction of the Schechinah or cloud of Glory, marched from Sinai to the wilderness of Paran, at which time the army marched in its hosts, under the command of the Princes of the Tribes in very exact military order, Num 10:12. Here the people complained, and it displeased the Lord, and the Lord heard it, and the fire of the Lord burned among them, and consumed them that were in the uttermost parts of the camp. And here the mixed multitude that was among them fell a lusting, and the children also wept again, and said, who shall give us flesh to eat? Num 11:1. When Moses perceived the great uneasiness and discontent of the people, and that the anger of the Lord was kindled greatly; he also was greatly concerned and afflicted with so unpromising and melancholy a prospect of affairs. He complains, I am not able to bear all this people alone, because it is too heavy for me, Num 11:4. Upon this complaint Jehovah said unto Moses, gather unto me seventy men of the elders of Israel, whom thou knowest, to be elders of the people and officers over them, and bring them unto the Tabernacle of the congregation, that they may stand there with thee; and I will come down and talk with thee there, and I will take of the spirit which is upon thee, and will put it upon them, and they shall bear the burthen of the people with thee, that thou bear it not thy self alone, Num 11:14,16,17.
This direction was punctually executed by Moses; for Moses went out and told the people that words of the Lord, and gathered the seventy men of the elders of the people, and set them round about the tabernacle; and the Lord came down in a cloud, and spake unto him, and took of the spirit that was upon him, and gave it unto the seventy elders; and it came to pass that when the spirit rested upon them, they prophesied and did not cease, Num 11:24,25!
This is the account the Scriptures give of the original and institution of this famous court or council, so much celebrated by the Hebrew masters.
In this account the number seventy, Gen 46:27, say Bishop Patrick, “is supposed both by the Jewish and Christian writers, to be derived from the number of persons that went down into Egypt with Jacob, who, saith R. Bechai, were a kind of prototype of this number in future ages, Num 11:16: for hence they were governed by so many elders when they were in Egypt. (Where there is no mention indeed made of the seventy, but he gathers it from what followed) and those were the seventy, whom we find at the giving of the law a little after they came out of Egypt, who are called nobles or great men. So that this number was not now first constituted, but rather continued and confirmed, Ex 3;16, 24:1-9,11.”
What might have been the particular reason of choosing the number of seventy out of the many more elders of the Hebrews, is neither certain, nor of great importance; but as seventy of the elders, that is, out of a greater number, were chosen to accompany Moses, Aaron, Nadab and Abihu, to the mount. So here seventy of the elders of Israel, that is out of a greater number, are appointed to bear the burthen of the people with Moses, Whom thou knowest to be elders of the people, Ex 24:1. For there were many elders, says Bishop Patrick, out of whom seventy were chosen.
These seventy so chosen out of the other elders were to be brought to the Tabernacle of the congregation that they might stand there with Moses. They were to be presented unto God, and consecrated to this service, that they might be as a standing council to assist Moses in the government of the people, so as to ease him in the burden of the government, that he might not continue to bear it himself alone. In order to give greater weight and authority to these councils, God promises he would talk with Moses, “to declare, perhaps, says the fore-mentioned Bishop Patrick, in their audience, that he appointed them to be assistants to Moses in the government.” Or by the voice of the oracle to declare his approbation of Moses’ government, and his appointment of these elders to assist him in his administration. And I will take of the spirit which is upon thee, and put it upon them; or in the words of the same author, “He conferred upon these men some of the gifts, (which are here meant by spirit,) viz. of wisdom, and judgment, and courage, with all others that are needful in a governor.” To assure the performance of this promise to the satisfaction of the people, it came to pass when the spirit rested on them, they prophesied and ceased not. Not to enter into any critical enquiry how they prophesied or how long, which is not to our present purpose; it is sufficient to observe, that the spirit of prophecy was an evident sign that they were chosen by God for coadjutors to Moses, that they were approved by him, and had received from him a spirit of government.
It is not certain in what manner they were chosen. “The Jews suppose that six were named out of each tribe, that is seventy-two in all, and in seventy schedules Moses wrote the name of elder, but the other two were blanks; then mixing all these in an urn, he had them come and draw. They, who drew a schedule with the name elder on it, were chosen; they, who drew blanks, were not.” But, as the same author observes, “this whole story of the manner of choosing the elders, is very dubious.” However it was they were nominated or chosen, it is highly probable, that as they were to bear the common burden of the government with Moses, which concerned all the Tribes, and which in particular was intended to keep them from continual mutinous complaints. It was proper there should be an equal number of each Tribe, and that they should be such persons as the Tribes themselves should approve, and confirm by their choice, as persons fit to be confided in. And thus far the Hebrew writers are unanimous.
But the design of this institution is of the greatest importance, in this enquiry. In general, they were to bear the burden of the people with Moses, that he might not bear it alone. This sure cannot be meant of the common and ordinary administration of justice, which had been provided for just before, in the Jethronian Prefectures. As far then as they were to assist Moses in matters judiciary, it could only be in those greater matters, which, as reserved causes, were to be brought before Moses; or such difficult questions as were referred by appeal from the inferior judges. In this sense, this court of the seventy elders will be a Constitution not much unlike the parliament of Paris, so far as that is a court of law. But this was not the only end for which this court was instituted. The immediate occasion of its institution, was the complaint of Moses, on the murmuring and sedition of the people, and the displeasure of God; that fire was sent to consume them that were in the uttermost parts of the camp; or “some in every part of the camp, as Bishop Patrick justly observes, where they began to make complaints to one another of their being still in a wilderness.” It is in answer to this complaint of Moses on this occasion, that the Lord said, gather unto me seventy men, of the elders of Israel…that they may stand with thee…and they shall bear the burden of the people with thee, that thou bear it not thyself alone. We see plainly, that these seventy were to be coadjutors to Moses in his councils, how to answer the people’s complaints, and to advise what would be best to do on all occasions, especially of greater difficulty; to preserve peace and good order among the people, and to prevent those mutinies which would likely prove fatal to the whole nation, if not remedied by some means or other.
In this view the seventy elders will appear to be designed not only as a standing court of law and equity, to assist Moses as judge in causes of greater consequence, and in appeals, but to assist the judge with their advice on every occasion. This was properly to bear the burden of the people together with Moses, that he might not bear it himself alone. For now the judge would not bear all the envy or ill-will of the people when dissatisfied or uneasy, with any part of the administration. For the common people, though they know very little of the reasons of any administration, are yet apt to think everything wrong that does not please them, or which is attended with difficulties to themselves or the public. Now, a council of seventy persons of the most approved wisdom and integrity, would at least share this burden among them all, instead of throwing the whole on one man. And it would be moreover an ease to the judges own mind, and make him more resolved in any council to be taken or executed, when it should be with the advice and approbation of a multitude of counselors, in which there is wisdom and safety. And finally, it was proper to give authority and respect to such orders as should be made by advice of persons, whom the people themselves had approved and chosen, as eminent for their wisdom and integrity.
Consider then this court, as a standing Senate always at hand, or as a constant privy council to the Judge, and we have a most wise provision for the easier and better government of the whole nation; and this will make a considerable part of the States-general of the United Tribes. But there remains another consideration of very great consequence, as to the national Senate of the Hebrews. Many seem to think that it consisted only of these seventy elders, led into this great mistake, I think, by the chimerical description the Talmudical writers have given of their Sanhedrim. As if these seventy elders were the only members of the National Council, and that the States-general of the United Tribes consisted of no other persons than these. This is a mistake, as I conceive, absolutely inconsistent with some of the plainest facts of the Hebrew history, and which has misled some very learned men into a considerable error, concerning the true nature of the Hebrew government.
For the Princes or Nobles of the Hebrews in their several Tribes, that is, the Princes of the Tribes and the Heads of the families of their fathers, appear very plainly to have session and vote in their national Senate. A few instances will be a sufficient proof of this part of the Hebrew government.
When the children of Reuben and Gad came with a petition to have their settlement assigned to them on the east of Jordan, they came and spake unto Moses and Eleazar the priest, and unto the princes of the congregation, Num 32:1,2. Though this petition was long after the institution of the Sanhedrim, yet the Princes of the congregation are assembled to consider this proposal; as they had been before in the case of female successions, Num 27, and as they were afterwards upon the regulation of the marriages of heiresses within their own families, Num 36.
As those persons are described by the titles of the Princes, the chief fathers of the children of Israel, it is plain we are to understand the same persons who were Princes of tribes and Heads of families, who were the nobles of Israel before the institution of the Sanhedrim, whose rank and authority in the Hebrew government was no ways taken away by the institution of that court. These were still the Great Council or Senate of the nation. This may appear yet more evident from a few instances under the administration of Joshua the successor of Moses.
When Joshua made a league with the Gibeonites, it was confirmed by the approbation of the Princes of the congregation; and Joshua made peace with them and made a league with them, and the princes of the congregation sware unto them, Joshua 9:15. And thus again, when the daughters of Zelophehad came to petition for their inheritance, as it had been ordered by the voice of the oracle, They came near before Eleazar the priest, and before Joshua the son of Nun, and before the princes, Joshua 17:4. And once more, when the eastern tribes had built an altar which gave jealousy to the western tribes, They sent Phineas the son of Eleazar the priest, and with him ten princes of each chief house a prince, throughout all the tribes of Israel, and each one was an head of the house of their fathers among the thousands of Israel, Joshua 22:13,14. That is, they sent a solemn deputation of the national Senate, in the name of the whole congregation of the Lord, to expostulate the matter with them.
But how, you will say, are we then to understand the seeming different accounts of the Senate of Israel? Was the court or council of the Sanhedrim the same persons, with these Princes of Israel? The description of these Princes, is such, as cannot possibly agree with any other person than the Princes of the Tribes, and the Heads of families, so well known before the institution of the Sanhedrim, that it cannot mean the seventy elders of the Sanhedrim only; and yet their rank and authority are spoken of in such manner, as to show, that they were employed in the great affairs of the nation, why may we not conceive of the Sanhedrim as a select senate, or as a lesser and privy council? When yet all the Princes of Israel might have session and vote in the great and general Council of the nation, which when assembled, is called by the ancient style the Princes of the congregation; and this may be a good reason why the elders of the Sanhedrim have so little express notice taken of them; for when the general national Senate was assembled, they were considered only as particular members of it.
Perhaps a modern constitution, which is more generally known, may serve to give us an easier notion of this national Senate of the Hebrews; I mean the constitution of the Parliament of Paris, which is thus given us by an eminent author: “Our kings attended the great affairs. They assembled the great men of the kingdom, and these assemblies were called the King’s Court of Parliament. The great men who attended these assemblies, were styled Barons of the kingdom, and afterwards Peers of France. These Barons of the kingdom were the bishops, dukes, earls, and all the great tenants, who held immediately of the crown; but as it was not easy to examine fully many of the affairs which came before them, the Kings gave commission to men of abilities, to assist with their care and councils, and these counselors were called Masters of Parliament,” Ia Force Descript. De la France Tom. I. p 204.
In the Parliament of Paris then, all the Peers of France have session and vote; but for the ordinary and common business, as a court of law and appeals, a certain number of counselors are commissioned to transact it. These Masters of Parliament are men learned in the laws, preside as judges in a court of justice, to examine and register the acts of state, etc. But on extraordinary occasions, when a full Parliament is summoned, all the Peers of France have right of session and vote as members of it.
If we were to suppose the Sanhedrim somewhat after this manner, constantly attending as judges in more difficult cases of law and appeals, and to assist the judge as a Privy Council on common occasion; and if we were to consider the Princes of Israel, as Peers of Israel, who had session and vote in the national Senate when assembled on extraordinary occasions of greater consequence: we should come nearer, I think, to the truth of the case than we generally do, from the false notions of the Sanhedrim, taught in the fabulous accounts of the Talmudists.
Some may imagine the preamble to the laws of King Ina, will give some light to this Constitution; there is mention of all his Aldermen, and at the same time of the elder wise men. What may we suppose the difference between these? As the Alderman appears to be much the same with Earl, while that was a name of office and chief government in a country; so the Witan (Anglo-Saxon nobles both secular and ecclesiastical, who advised the king in the most important national matters) seem to be men of learning in the law, or employed in affairs of state, and so most conversant and best skilled in them. But such similitude of the wise men to the Hebrew Sanhedrim, and of the Aldermen to the Princes of Israel, is submitted to the judgment of those who are skilled in our Saxon antiquities.
However, this seems clear and evident, that whoever they were who composed the great Council or Senate of the Hebrew nation, under the style of Princes or Elders, that there was a Senate to assist the Judge, and by whose advice he acted in affairs of consequence, and which concerned the whole nation. And this was a second part of the Union of the Tribes. There was a national Council and Senate, as well as a Congregation of all Israel.