03. Legislative Functions

Legislative Functions

Chapter II The Scripture itself affords some remarkable information respecting the legislative functions of the ancient kings of Persia, and the cases there presented claim our most heedful attention. The first instance that throws light on the subject is, that of the decree which the courtiers extracted from the easy nature of king Darius, in the hope of rendering it instrumental for the destruction of Daniel. When the adversaries of that upright and just man found that no accusation could be established against him in connection with the discharge of his official duties, they concluded that his religion afforded the only way by which he might be brought into disgrace. But the existing law presented no means of assailing him, even on the score of his religion, and it was thought necessary to inveigle the king into the utterance of a new law, which should be as a snare for the illustrious Hebrew, without its object being suspected by the king. They, therefore, appeared before the monarch, and informed him that they—the high officers of the realm—had agreed upon a complimentary decree, that no one should prefer a petition to any god or man for thirty days, save to himself; and that whosoever disobeyed this decree should be cast into the den of lions.

“Now, Oh king,” said they, “establish the decree, and sign the writing, that it be not changed, according to the law of the Medes and Persians, which altereth not.” The men who made this proposal were evidently not Medes nor Persians, to whose views it was altogether adverse, but Chaldeans, native officers and princes, with whose notions it was in entire accordance. Darius himself, though not a wise man, must have thought the whole matter absurd; but, flattered by the intention to render him honor, and thinking that he might let them do so in their own way, he, in an evil hour, consented. He uttered the decree; and, when written down from his mouth, he signed it—when it became a law which he could not himself rescind or contravene.

Now it had been the custom of Daniel to offer up his prayers and thanksgivings three times a day, upon his knees, with his windows open towards Jerusalem, and his face turned in the direction where the temple of the Lord had stood. Aware of this practice, his enemies watched him closely, and his uncompromising firmness in all that touched his faith was so well known to them, from past experience, that they did him the honor of believing that this, his custom, would not be intermitted, even at the command of the king, to whose service he was bounds and whose highest favor he enjoyed. Nor were they mistaken. Some, in Daniel’s case, would have thought that they might have shut their windows, or might have withdrawn to some secret chamber, and there offered up their prayers to Him who seeth and heareth in secret. But Daniel thought not so. He would not, by ceasing to do as he had been wont, indicate a wish to have it supposed that he was acting in obedience to this monstrous decree. He knew that the God he served, and whose favor was more to him than that of kings, was able to deliver him from, or sustain him under, whatever danger or calamity might come upon him in the discharge of his duty. Therefore, he no sooner heard that the king had signed the decree, than, his hour of prayer being come, he withdrew into his house, and prayed on his knees, with his windows open as heretofore. His enemies now repaired, with glad hearts, to the king, and reminded him of the decree, the particulars of which they recited. Darius admitted that the thing was true, “according to the law of the Medes and Persians, which altereth not.” Then they came upon him with the astounding intimation that, by his foolish acquiescence in a decree adverse even to his own principles, his most favored servant had incurred the doom of the lions’ den. The king no sooner heard the consequence of the decree he had so blindly granted, than it had the proper effect upon him: he “was sore displeased with himself,” and he manifested such signs of a disposition to deliver Daniel, in despite of the obligations he had placed himself under, that the alarmed courtiers found it necessary to remind him, with considerable solemnity, “that the law of the Medes and Persians is, That no decree nor statute which the king established may be changed.” He was then obliged to submit, and to sign the order for committing Daniel to the lions’ den. But he did so with a trembling hand and an aching heart; and, having retired to the private chamber of the palace, passed the night there in grief. The last meal of the day, when all its business has ended, is that which, then as now, the Orientals most enjoy; but from this the king that night abstained. It was usual for the monarch, after this meal, to listen to skilful music until bed-time; but this night “the instruments of music” were not “brought before him.” He retired to rest; but, “sleep went from him.” The thought of his own criminal lightness, and the picture of his venerable friend devoured by the lions, suffered him to take no rest. Yet he was not without hope. He remembered what Daniel had often told him of the wonders of deliverance which his God had wrought in times of old, and he ventured to suppose it possible that He who saved Shadrach, Meshach, and Abednego, from the burning fiery furnace, might deliver his servant even from the lions. This thought made him restless till the dawn arose; and as soon as it was light, he hastened to the den, which was within the precincts of the palace, and when he came there, he called in with a lamentable voice—“O Daniel, servant of the living God, is thy God, whom thou servest continually, able to deliver thee from the lions?” What a question this seems to us! Yet, taken in relation to the position and circumstances of the speaker, it is highly suggestive as to the degree of knowledge respecting the God of Israel which, from the communications of Daniel and other Jews, he had been enabled to acquire. How was his heart gladdened, and his anxiety relieved, by hearing the voice of Daniel rising cheerfully from the den, “O king, live forever! My God hath sent his angel, and hath shut the lions’ mouths, that they have not hurt me: forasmuch as before him innocency was found in me; and also before thee, O king, have I done no hurt.” Darius commanded his instant release; and he terribly manifested his resentment against those who had so painfully disturbed his peace, by directing that they should themselves be cast into the lions. And there was no God to deliver them: but “the lions had the mastery of them, and brake all their bones in pieces or ever they came at the bottom of the den.” This is altogether a most striking example of the manner in which the kings of the Medes and Persians might be hampered by their own prerogative, and be compelled to witness, hopelessly, results from their own acts which they abhorred, but felt unable to avert.

It is not difficult to understand the principle of this singular law, by which alone the royal power appears to have been limited, although that power seems, at the first view, to be the more enhanced and aggrandized by it. The rationale of the matter appears to be this. The king’s word was law; and as the sovereign was thus the fountain of all authority, and he was looked up to as something more than man, it was natural, on these premises, however revolting to common sense, to decree that his purposes, once declared, should not be altered; because a law ought to be a determined thing, on the one hand; and, on the other, because to have allowed him to yield to voices of reason and mercy after his purpose had been declared, would have involved the admission that he had been hasty and mistaken; and this could not be tolerated under the intense despotisms of ancient Asia.

It also acted or was calculated to act, as a limitation upon a power far too high for any human being to possess. The consciousness that his word, which formed the law, could not be recalled, and a few such experiences of the operation of the custom as Darius had in the case of Daniel, and as Ahasuerus realized in that of Haman and the Jews—were well calculated to make the king more cautious and guarded as to his decrees, than might be felt needful by a monarch who knew that a word uttered today might amend any evil which the word uttered yesterday had occasioned. It was, doubtless, to prevent this, and give to the law the degree of certainty essential to the public good, and to exalt the sovereign by maintaining the inviolability of his word, which led to this singular usage, which is in many respects so remarkable as to deserve much more ample investigation and illustration than can here be afforded to it.

It claims notice, however, because it appears in the Scripture itself, that the decrees of any one king could not be rescinded even by a subsequent king, but must, of necessity, be enforced by him. This is only remarkable in connection with the autocratic origin of the law from the king’s own mouth. For, when a law is enacted by God himself, as was that given by Moses, or when it emanates from high councils, or from deliberative bodies, known to have taken account of all the circumstances which bear upon it, there is no expectation of change so long as the circumstances which called for the law continue to operate. But, when the voice of one man—even though a king—is law, we seem to expect that his decree should be less stringently binding upon his successors than upon himself. Yet we see, in Ezra 5, that after the work of the temple had been greatly interrupted by the enemies of Israel, and had even been countermanded on their misrepresentation by Artaxerxes, the people, eventually, at the instance of Haggai and Zechariah, resumed the work, in reliance upon the protection of God, and upon the justification which the decree of Cyrus afforded. This occasioned a visit from Tatnai, the Persian satrap of Syria, who demanded the authority for their proceedings. They alleged the decree of Cyrus, of which he manifestly knew nothing. But, although that decree had become old, and it was then the third reign since Cyrus died, Tatnai at once felt it was of the most binding obligation and could not be rescinded by subsequent events. Instead, therefore, of troubling himself to inquire about any altered circumstances which might, in the long interval, have arisen, he, like a true Persian, felt that there was nothing to be done but to ascertain whether this decree really existed, and, if so, to act upon it. He wrote to the head government to that effect, not suggesting any matter of deliberation, but that search should be made among the records for this decree of Cyrus. The reigning king, Darius Hystaspes, at once ordered this to be done, and an earnest search was accordingly instituted. As the matter had occurred when Cyrus was at Babylon, and as it belonged to the affairs of that province, it was expected to be found among the archives of that city. But, as it could not be discovered, a fresh search was made among the records of the Median capital, Achmetha, or Ecbatana. A copy or recital of this was sent forthwith to Tatnai, with urgent directions that it should be obeyed to the very letter, and that every means should be taken to forward the work to which it referred. That this was less from any regard to the Jews than from respect to the order of Cyrus, and from imitation of the good feeling he had manifested, is clear from the fact, that no favor beyond that specified in the decree could be obtained; and that, although the work of the temple was forwarded in accordance therewith, the permission to build walls to the city was constantly refused during the reign of this same Darius, as well as in that of his successor.

We have dwelt the rather on the case in which Daniel was concerned, as it is, in many respects, the most interesting and suggestive. But the additional information which the instance of the decree obtained from king Ahasuerus by Haman, for the destruction of the entire Jewish nation, must not be overlooked. From the case of Darius, it might seem as if the decree to which the force of a law was to be given should be sanctioned or suggested by the king’s council. The same conclusion might be derived from Esther 1, where the council is distinctly mentioned, and the names of the members given, while it is clearly stated that it was the king’s manner to confer with those who “knew law and judgment” (Esther 1:14-16). In fact, although the matter was one in which the spontaneous action of the king might be more expected than in any other, being as to how he should deal with his refractory wife, the king submits the whole affair to the determination of his council, and it is in accordance with their advice, and upon the grounds which they assign, that the king “sent letters into all the king’s provinces, into every province, according to the writing thereof, and to every people after their language, that every man should bear rule in his own house.” This, we are told, was, by the same advice, “written among the laws of the Persians and the Medes, that it be not altered,” showing that, as in the former case, this registration was necessary to give the decree the force of a law.

Yet, in this instance, it is stated that the king adopted the advice of his council, because it pleased him; and it is very certain that he was not bound to have given it the force of a law if he had not liked. The inference deducible from these cases—as to the apparent necessity of obtaining the sanction of the council—is also overturned by another, contained in the same book, which shows that the king was not more bound to consult his council at all than he was to adopt the course it recommended. The famous decree for the extermination of the Jews was obtained from the king by his favorite, Haman, a minister of foreign extraction, without the intervention of any council, and in the indifferent and careless manner which the habitual possession of uncontrolled power is apt to engender. In this instance the king, without troubling himself to inquire into the merits of the case, told the insidious minister to act in the matter as he pleased, and gave him his signet ring, the use of which gave the validity of a regal act to the orders he might issue. Accordingly, the royal scribes were employed diligently in making copies and translations of the decree, which, being sealed with the king’s signet, were dispatched in all haste to the provinces. The sacred historian significantly indicates the character of the transaction by adding, “the king and Haman sat down to drink; but the city Shushan was perplexed,” Esther 3:15. This instance is further remarkable for the light it throws on the means which might be taken to neutralize the effect of a decree which could not be directly recalled. The decree was, that all the Jews, in every province of the empire, should be destroyed in one day. When the eyes of the king were opened, through the intervention of Esther and Mordecai, and he became earnestly desirous to render the previous decree abortive, the only plan, it would seem, that could be devised to that end, was to send forth another decree, permitting the Jews to stand upon their defense upon the day appointed for their destruction. The governors of the provinces had been commanded by the previous decree to destroy them, and they were bound to make some show of obedience; but the moral effect of the second decree, which clearly indicated the change of the royal mind, would tend to make it only a show, and the resistance authorized by the second decree would not merely give the authorities a decent excuse for not executing the first, but would prevent, what seemed to be much apprehended, the real enemies of the Jews from destroying them with impunity, under cover of obedience to the first decree. We can thus see how the exercise of despotic power must have been limited by the experience of the embarrassment which the inconsiderate exercise of it was apt to occasion. The absolute despotism of the legislative power of the king, in its practical exercise, must also have been considerably limited by the body of written decrees which had been issued by his predecessors or by himself, and which he could not alter or contravene. This must, in all cases of importance, have incurred some deliberation and delay, as it would be necessary that competent persons should previously ascertain the existing state of the law on the subject. This a just king, who wished to enjoy a fair fame in his nation, would desire to consult, although one of a really despotic temper might over-ride all such limitations of his absolute will, and would probably not incur much blame in so doing. This fact is curiously illustrated in the history of Cambyses. When he demanded whether it were lawful for him to marry his sister, the council, knowing it was his fixed purpose to do so, answered, there was indeed no law which permitted it, but there did exist a law which made it allowable for the king of Persia to do what seemed to him good.

It appears, that in ancient times in Persia, at least after the adoption of the Magian religion, there was a law, which, mixed with ancient usages, formed what was called “the law of the Medes and Persians;” and it is clear, from the histories of Darius and Daniel, that the decrees of the kings went to form a kind of appendage to this written code. This there was a judicature to administer; and the existence of such an institution, composed as that was of men eminent for their wisdom and love of justice, and possessing their places for life, must, as regarded the great body of the people, have formed a considerable barrier to the absolute power of the crown. The kings themselves were watchful over the purity of this tribunal; and judges convicted of corruption were punished, not only with strictness, but with a degree of cruelty such as despotism alone can devise or execute. In this manner, Darius Hystaspes caused one of them to be crucified; but, on discovering that he had benefited more than he had injured the royal house, he commanded him to be taken down from the cross. Cambyses commanded another to be flayed alive, and his skin spread over the judgment seat on which his son and successor was to sit. Similarly severe examples of Persian justice occur occasionally at the present day. All this accords with and illustrates the peculiar vehemence of indignation with which the perversion of justice is mentioned in the Old Testament. At the present day, although the king’s will is, in the popular and theoretical sense, law, the nation is, in fact, governed substantially as of old, and as were the Hebrews, by a written code. This is the Koran, which, with the traditions recognized as authentic, forms the only written law of Moslem countries. There can be, indeed, no other than this, to which a Divine authority is ascribed. Thus, therefore, we have a very practical parallel to the government of the Hebrews under the sole written law of Moses; and, by seeing how this acts, and how the exigencies not contemplated by an ancient and unalterable code are provided for, we may collect some ideas respecting that very obscure subject—the practical jurisprudence of the Hebrews. In Persia, then, this written sacred law is administered by the ministers of religion; and, although in that country the ecclesiastical body is shorn of the consequence which it still possesses in Turkey, they, with their code of sacred law, form—as doubtless the priesthood, armed with the law of Moses, did in Israel—a safeguard and a refuge to the great body of the people, against any gross injustice by the crown or its officers. Protected by their sacred character, there are always to be found among them men ready to raise a voice against any wrong which the crown commits, or which any of the people suffer: like John the Baptist (himself a priest), who feared not to tell one of the most despotic of princes, who had committed a gross wrong, by taking away his brother’s wife—“It is not lawful for thee to have her.”

But, it is often asked, was the law of Moses the only one among the Hebrews? It is very certain that, in the progress of social institutions, many circumstances must have occurred for which the law of Moses made no provision; and the question is, whether, apart from a direct appeal which was made to God, such cases were adjudicated upon according to the sense of equity in the judge, or were determined by customs and precedents which might, in the course of time, form another and unwritten code, embodying, probably, many ancient customs of patriarchal and tribal life which had not been embodied in the law of Moses. The nature of the case seems to decide for the latter alternative as the more probable, in any instance where the written public law is of ancient date, and incapable of extension by an authority equal to that of its original promulgation. Such, at least, is the fact in Persia; and the practice there, as described in the next chapter, may help to throw some light upon the probabilities of the question, as regards the Israelites.