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366 § 297. Right of the IsrAELITEs
along with them, Gen. 50: 24–36. Exod. 13:19. Could a people have given a stronger proof of their animus revertendi, and that they had not forever abandoned their ancient country? Was it necessary (I think not) that they should have sent a notary every thirty-three years, to protest against the forfeiture of their rights? Even the Egyptians well knew the expectations of the Israelites on this head; and that was the principal reason of their oppressions towards a people that were not to remain forever within their country, and in subjection to them. For although from the first they did not intend to let them go, yet they were afraid, from the rapid increase of their numbers, that if a war took place, they might side with the enemy, and not perhaps conquer the country, but depart from it;* or, as the proper expression is, go up : for we must recollect, that to go from Egypt to Palestine, was, in the idiom of the Hebrews, to ascend; and, vice versa, from Palestine to Egypt, was to descend. From the representation we have now given of the origin of the war, it will be easy to perceive (what to a reader of the Mosaic history must otherwise appear at first very strange) why Moses did not attack the Canaanites beyond Jordan; but from Og, king of Bashan, and Sihon, king of the Amorites, requested nothing more than an unmolested passage, and only had recourse to arms when, instead of granting it, they marched hastily into the wilderness to meet him, and of. fered him battle. The reason was manifestly this, that the Israelites laid no claim to the country beyond Jordan, but only to the pasture-grounds that from time immemorial had belonged to the Hebrew herdsmen, and which their ancestors, Abraham, Isaac, and Jacob, had actually occupied with their cattle. “‘But might they not at least have left to the Canaanites those trading cities which had been built, without opposition from their ancestors?” This question is easily answered. ' If a foreign people, whom we permit to establish factories and trading cities in our land, shall so abuse our generosity, as to dispossess us, and gradually appropriate to themselves our whole country; and when we wish to return to our ancient abode, shall meet us with arms in their hands, in order to prevent it; and shall, finally, have become so extremely wicked, as to render it impossible for us to live with them, without having our morals corrupted—we certainly are under no obligation to leave to them these factories and * See Exodus 1 9, 10,
TO PALESTINE, 367
trading cities, and thereby expose ourselves anew to the risk of such corruption. - “‘But were not the Israelites in duty bound first to send the heralds, and formally demand their lands again from the Canaanites?” This question I must leave completely unanswered, partly because it belongs to the yet controverted, point whether certain solemnities are or are not necessary at the commencement of a war, by way of declaration, and particularly, because we do not know whether Moses and Joshua did so or not. “By way of conclusion, I must still take notice of two objections, which Mr. Oepke has made to my opinion, and on which I have not yet touched. But because they are of more weight than those before noticed, l ought, perhaps, rather to ascribe them to Professor Stiebritz himself. “In the first place, he is of opinion, “that the Israelites ought not to have re-appropriated a land possessed by wandering herdsmen, unless all the posterity of such herdsmen had transferred their rights to them.” But let it be remembered, that the question here is not concerning wandering herdsmen quite unconnected with each other, but only concerning those of Hebrew origin, and of these, more particularly, the ancestors of Abraham, Isaac, and Jacob : and I do not see wherefore such a transfer could have been necessary, since we must here judge not by civil, but by natural law only. If several persons have an equal title to a certain possession, and some of them, either from weakness or cowardice, do not make it good, and relinquish it ; another, who has the courage to act otherwise, does not from their pusillanimity lose a particle of his right: and if he conquers the land which they have abandoned, he holds, first, his own quota, by the right of former proprietorship; and then, the remaining part, by the right of conquest; which, in the case of a legitimate war, is equally legitimate. The other claimants who did not support him, and had relinquished their rights, can make no pretensions to the fruit of his victories; and the unlawful possessors, who had carried on an unjust war, have it to thank for subjecting them to greater loss than they would probably have experienced, if they had yielded with a good grace. “In the second place, he objects, “that I ascribe the war to a cause, to which Moses himself has not referred it; and that, as 368 § 297. Right of the Israelites
any people that begin a war, are anxious to convince the world of the justice of their cause, a reason never once urged by Moses, can hardly be held as the true ground of the war.” But here, I may very confidently reply, that Moses only gives laws for the war against the Canaanites, without any where mentioning the legal cause of the war: for Mr. O. himself does not account the diwine commandment and promise, as its cause. Moses writes histories, and records laws; but the war-manifesto against the Canaanites, from whence we might deduce its justice, has not been furnished us by him. And as he mentions no reasons for the war, we are not entitled from his silence to form conclusions against any particular cause to which it may be ascribed. And of all causes, that to which I ascribe it, has the best foundation in the history recorded by Moses, through which history he generally paves the way for his laws. “I must yet add, that this farther objection has been made to my opinion, “that a wandering people could hardly be considered as proprietors of a country, in which no individual could specify any particular ground as his own, from his always shifting his abode from one place to another.' I had not, indeed, considered it necessary to notice this objection, because the fact that a community may possess undivided property, is so very notorious; but as a learned person, who, in his writings, often refers to my Mosaic law, has lately repeated it, it becomes my duty to explain myself more fully on this point; and my answer is this: “A community, and even a whole nation, may possess property undivided, and in common. What, indeed, is more frequent among ourselves, than such common properties' Many a village has a common wood; of which, not a tree, nor an inch of the ground, belongs to any individual villager, and yet the whole is their joint property; and whoever, without full right and leave, carries off wood, or even fells a tree, is guilty of theft. Or again; a village or a town has a common meadow, which can never be conveniently portioned out into individual properties; at least no part of it belongs to any private person exclusively; and yet the whole, to the community at large. Did those to whom property in common appears such a strange matter, never hear, that in Germany there are many such commonages, which our modern improvers would sain abolish and reclaim, if they durst; where
TO PALESTINE, 369
green pasture land, for instance, which might be used to much better purpose under tillage, belongs merely as a common to one or more villages. The disadvantage of the present system, is universally understood; and the allotment of such lands to particular tenants is much to be desired : but then the cry is, that communities are not to be deprived of their ancient rights. Even the corn fields are in the same situation, in so far as they may not be fenced, and must lie fallow at certain times, and after harvest be subjected to the servitude of having the herds driven to pasture upon them, from perhaps a community of many villages, where even those who have not a foot of ground of their own, can assert a right to this privilege, from the mere circumstance of occupying a house. This too is justly considered as extremely prejudicial to the public good, not merely by individual deconomists, but, in some countries, even by the legislative authorities, and the wish to alter it is very general; but it cannot be done, for, it is said as before, No man is to be deprived of his right. “But even a whole nation may, in like manner, have a common undivided property. Thus whole nations, by particular treaties, enjoy the right of certain fisheries, such as that of Newfoundland, without this property being actually divided, or even possibly divisible among individual fishermen. Thus also the Indians in North America, possess their immense forests undivided, as wandering hunters; and have justly made great complaints, when at any time the English or French colonists have attempted to clear and cultivate those forests, without previously purchasing them, which is generally done for a mere trifle. I remember to have read a great many years ago, in an English journal, (either the London or Gentleman's Magazine,) the speech of an Indian chief, which he made in a congress of the Indians with the English, and in which he represented the injustice of this, in a very rational and affecting manner; observing, that those forests which the Great Spirit had of old given to the Indians, and in which they had always lived, were now by some of the English daily more and more circumscribed, so that in the end they would have no dwelling place left them. I cannot recollect the particular place where I found that speech; but allowing it had been entirely fictitious, (which it by no means seemed to be, as it bore all the marks of
truth,) it is very certain that the English governments in America 370 § 298. on The Division of The spoils.
do recognize the rights of the Indians. Indeed, the first colonists, who, for conscience-sake and religion, emigrated from England, took no land without leave of the Indians, and if afterwards, people less conscientious, such as transported criminals, whom the Americans will now no longer receive, were sent out, and, taking forcible possession of the woods, began to clear and improve them, (which actually gave rise to wars.) this was absolutely forbidden by the British government; and those settlers, who wished to penetrate into the woods and form plantations, were, and are obliged either to purchase the ground from the Indians, or come to terms with them in some other way. “By the same common right, have many great peoples always possessed their lands, and still possess them ; as for instance, the present Mongul tribes, who live by breeding horses. Their soil is extremely rich, and susceptible of the highest cultivation: the grass grows to an uncommon height in the fields; but the whole country belongs to the people at large as a common pasturage : and against strangers who should attempt to seize or pasture it, or circumscribe it by cultivation, they would unite to defend their right to it with all their might; just as our Teutonic ancestors defended their forests as public property, against the Romans. I should, therefore, think, that until a new code of natural and civil law shall be devised, and as long as we must, on account of common possessions, abide by the old, objections like the present can have no force.” Commentaries on the Laws of Moses, dri. 31.]
§ 298. ON THE Division of The Spoils.
The spoils of the enemy's army, $5, to, were divided among the victorious soldiers. They were the reward of the toils, which they had endured, and were, consequently, the cause, wherever they were won, of the most marked indications of joy, Gen. 49: 27. Exod. 15: 9. Jud. 5:30. Is. 9: 2, 3. Ezek. 29 : 18–20. Ps. 119:162. There seems to have been a propriety in making such a division of the property taken, for the soldiers anciently, with the exception of the officers, and the life-guard of the commander, did not receive wages. They either paid their own expenses themselves, or were supported by their parents, Jud. 20:10, 2 Sam. 17:17–20. The Hebrew kings, however, in a subsequent