Robert H. Jackson Center

Law and Lawgivers

On Palm Sunday, April 2, 1950, the Honorable Robert H. Jackson, Associate Justice of the Supreme Court of the United States and one time Attorney General, delivered a memorable address in Washington Cathedral, when two clerestory windows were dedicated. This article was taken from the Cathedral Age, a publication of the National Cathedral Association (Vol. XXV, No. 2, page 2).

"The dedication, on Palm Sunday, of two clerestory windows located in the east wall of the North Transept, completed the trilogy representing the three human enterprises to which the Bible gives major recognition: medicine, law, and education. The new windows, law and education, were designed and executed in the studio of Wilbur H. Burnham of Boston and were given by Mrs. Benjamin DeWitt Riegel of New York in memory of her father and her husband, respectively.

The Law Window, in memory of William Edgar Edmonston (1843-1927), a Washington lawyer known for his deep concern for the welfare of widows and orphans, shows Moses, the Lawgiver, in the central panel; at the left is Alfred the Great, representing English common law. At right is Justinian, representing civil law.

At the bottom of the window, from left to right, are represented King John and the Barons signing the Magna Carta, Trial by Jury, and the constitutional Convention of the United States.

The Education Window, in memory of Benjamin DeWitt Riegel (1878-1941), who did much to modernize and improve living conditions and strengthen educational and recreational facilities in the communities where his business was located, has at the top of its central panel a representation of the boy Jesus among the learned doctors, “both hearing them and asking them questions.” In the left panel at the top is shown Plato (B.C. 428-348), and beneath, St. Paul sitting at the feet of his teacher Gamaliel. In the right hand panel at the top is Horace Mann (1796-1859), the chief historical figure in the development of American education, including the training of teachers. Beneath him is seen John Amos Comenius (1592-1670), the Moravian bishop who introduced new teaching methods into Europe and published the first children’s picture book."

Some of this congregation may be surprised that a Cathedral window is to symbolize Law and Lawgivers. Law manifests itself to many minds only as authority and force, associated with endless strife and contention. Law, in that concept, would hardly afford an uplifting theme for Cathedral art. But in the Old Testament tradition, law was a body of rules to be followed because they were right, and to learn and obey them was a party of every man’s education and religion. No story of the faith which has builded this Cathedral could be complete if it left out the Law.

What is this law as portrayed to us in the likeness of an ancient Hebrew Leader, a Roman Emperor, and a Saxon King of England? Although these are characters from far away and long ago, they are not symbols of a dead and buried antiquity. Ancient and foreign as they are, they personify streams of legal thought – streams that flow as living waters through our own courts of justice.

To one who thinks of law only as the command of some authority controlling a police or as only the enactments of Congress and State Legislatures, this window could have little meaning. But contrary to the impression of laymen, of the rules by which our society governs itself and which decide cases in our courts a trifling part, are to be found in any law enacted by our Government. If every existing statute were repealed, there would be enough left of what courts regard as law to decide most of the controversies between private citizens. And I do not suppose many of us would live very differently than now.

Law does not cease to be law because its observance becomes habitual and unconscious rather than sullen and resentful. The customs and precepts by which our daily lives are ordered, by which behavior of men is self-regulated, come from our cultural, moral and spiritual teachings more than from commands of our political officials. Law in this sense has an existence and authority that does not wait upon enactment by contemporaneous governments. It is Law in the sense of a body of learning and tradition that is part of our intellectual and spiritual heritage that these figures personate.

It was this more spiritual concept of law which inspired our forefathers to risk their lives and fortunes in signing the Declaration of Independence. They invoked what they called “the laws of nature and of nature’s God.” They took for self-evident truth that by their Creator men are endowed with certain unalienable rights, among which are Life and Liberty. Thus they thought of Law as embodying truths above power and of governments to enact and above their power to repeal.

The three majestic figures selected by the artist to symbolize Law do so only in the sense that law is something higher and more lasting than the command of contemporaneous authority backed by the police. They personify the three important, intellectual and spiritual sources of present-day law – Hebraic, Roman, and English. If one misses recognition of any Hellenic contribution, we may reflect that the genius of Greece was philosophical and artistic rather more than legal.

Of these personages, nearest to us in time and perhaps in thought is Alfred the Great, who about a thousand years ago liberated the English people from the Dane. Then he reorganized government, systematized the laws, introduced advanced legislation, and so reformed the administration of justice as to win the title “protector of the poor.” He founded schools and imported scholars, for he was himself a scholar who wrote several books and translated others for the education of his people. It was he who first set in motion the intellectual and moral forces that over the years have created the Common Law, for which in this window his kingly figure stands. Alone among English Kings we call him “The Great” and his title is authenticated by history as well as by legend.

THE COMMON LAW

The Common Law, now sometimes called Anglo-American law, is a system of legal thought and practice largely evolved by British judges in deciding particular controversies. It contrasts with other systems in being less thought-out in the chambers of scholars and more fought-out in the courts; it is not a code of principles, but a collection of judicial precedents. It is the creation of judges rather than of legislators. Hence, it strongly accents the freedoms and rights of the individual as against government. Its teachings contributed to bring about Magna Carta, the great Charter of English liberty, and or own Constitutional Bill of Rights and trial by jury – the three bulwarks of freedom represented by scenes in the lower panels. This system took root wherever English-speaking people have settled. They transplanted it to America; after the Revolution it was adopted by the original States and it has become the characteristic jurisprudence of the United States.

Emperor Justinian, who invites our attention to his book of law, is a more remote figure. In 527 A.D., he came to the throne at Constantinople. Roman law then was scattered, conflicting, much of it obsolete, and all of it confused. Justinian saw the need for collection and compilation of the imperial laws still in force, and of the writings of the lawyer—philosophers that had gained acceptance as authorities. He delegated the editorship to an exceedingly competent jurist – Tribonian. The idea that the emperor himself shared the labors or was even equipped to do so, is one of those charming myths that gather about distinguished names. But he ordered and provided for the work and published the massive codes that resulted. They were supposed to contain all law existing in the empire, which then ruled the known world. Justinian’s Codes were destined to outlive his empire. Roman law suffered eclipse and almost extinction with the barbarian invasions; but as Europe emerged from the darkness of the Middle Ages, interest in this vast body of legal learning revived. Its fairness and equity have impressed all later lawmakers. It has been accepted in all of what we call civil-law countries and has profoundly influenced legal thought wherever men have cherished the ideal of law-governed society. The later Roman law was designed to meet the needs of a world, and it came nearer than any we have known to universal acceptance. It is the foundation of Code Napoleon, which has prevailed in all French-speaking countries, and of the present codes of Germany, Austria, Netherlands, Belgium, Switzerland, Italy, Spain, Portugal, and all of Latin America. Even the law of pre-revolutionary Russia, to which there seems to be a present tendency to return, was described by Bryce as being Roman “at the second remove.”

The Civil Law, as that derived from Justinian has become known, also has exerted a substantial influence in molding local law in parts of the United States. Through Code Napoleon, it became and still is the basic jurisprudence of Louisiana. Through Spanish or French influence, the Civil Law colored the legal thought in Texas and the territory ceded by Mexico, Florida, the Louisiana Purchase States, and the Northwest Territory. And by reason of the Norman Conquest the later ecclesiastical influences, Roman law has helped to shape even the Common Law. So Justinian, like Alfred, is an appropriate symbol of our law.

THE LAW OF MOSES

But what of Moses, the most commanding and ancient of these personalities? It is this central figure that most closely identifies law with religion, for in him were united the function of priest and lawgiver. I need not more than mention the Ten Commandments, which, to the minds of many, constitute the Law of Moses. But the Pentateuch lays down a large body of less-known general principles for the guidance of early Hebrew judges.

Perhaps it is fitting in this connection to mention the judicial system of early Israel. The Levites were chosen to be judges. The Great Sanhedrin became as some time the supreme tribunal for the interpretation of Jewish Law. It probably originated in the command that Moses gather seventy of the elders of Israel to help him bear the burdens of government. At all events, it consisted of 23 priests, 23 scribes, or lawyers, and 23 elders, or leaders of the people, which, together with a vice-president and president, made 71 members, and it had final jurisdiction throughout the land. Membership not only was the highest of honors, but was governed by severe standards of learning in the law, of physical impressiveness and of upright life. Except for the discredit it suffered for its somewhat obscure part in the crucifixion of Christ, I think we must accord it a high and honorable place among the judicial institutions of the ancient world. It is hard to say at just what period particular rules were introduced but judged in the context of its cruel times, it was always a relatively humane institution. In its judicial functions it was in many ways far in advance of its time, especially in protection of the accused, a fact that is difficult to reconcile with what we know of the “trial” of Jesus. Two witnesses were required to convict, hearsay was rejected, and circumstantial evidence was not admitted. An accused could testify but could not be made to incriminate himself, and a confession, unless corroborated, was not sufficient to convict. The judges, in voting were expected to give reasons. If the prisoner were found guilty, he was not to be sentenced until the following day, and on the second day the deliberations and the vote must be repeated. Those who had voted for acquittal could not change, but those who had voted to convict could relent. Crucifixion was a Roman form of execution and had no place in the Hebrew law or custom. But sentence of death was savagely executed by stoning, strangling, burning, or beheading. Over the long stretch of Hebrew history, the Great Sanhedrin seems to deserve a much better name than the pitiable repute it has among Christians because of one day’s excitement and lawlessness. It was not the last court to blunder under the pressure of public clamor.

The Pentateuch, which embodies the substantive law of the Jews, makes no sharp distinction between crime and sin. But the fact remains that many of our crimes were also their crimes. Their penalties were harsh and aimed at vengeance or reprisal rather than reform of the criminal. Its guiding spirit, as repeated in Exodus, Leviticus and Deuteronomy, was –

" Thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, strike for strike.”

But Mosaic law was an advance over many ancient codes which often took vengeance upon persons other than the one who committed the crime.

The commands of Moses, the edicts of Justinian, and the decrees of Alfred’s common law, although they have important differences, do not comprise antagonistic or incompatible systems. Each does service in some large part of the work to make it less disorderly and violent. Each has shown amazing vitality and accommodation to circumstance. The precepts of Moses, besides guiding his own people, have counseled the conscience of judges and legislators of every faith and in every land. The civil law has molded the philosophy of private rights for empires and republics, dictatorships and revolutionary governments. The common law, too, has evolved through the centuries with dramatic indifference to changes in political institutions. It survived the Norman Conquest, the Tudor Authoritarianism, the English Reformation, the Puritan Revolution, the Protectorate of Cromwell, the Restoration, and a host of less violent changes. Of course, political events have caused local or temporary deviations from particular rules of both civil and common law. But more significant than their occasional variances are their general continuities. In essentials, each has maintained over centuries in integrity and character.

If we return to the question “What is law?” the personalities that look down upon us are not entirely in agreement. To Moses it meant commands from God. But Common law has boasted of being “the perfection of human reason.” The Digest of Justinian defines Law as “the art of what is right and fair,” and justice as “the constant and perpetual desire to render everyone his due.”

EDUCATION AND LAW

But upon one thing I think they all would agree with our American forefathers: Nothing will be accepted and will endure as law that does not possess the moral qualities of a natural justice measured by standards supplied from the conscience and thought of disinterested men.

Moses would be equally fitting in the window that symbolizes education, for he, more than any other, associated teaching with law-giving and learning with law-abiding. In this, his example contrasts sharply with the indifference of modern education to law. Though law is one of the elementary forces that shape every man’s life, perhaps to the uneducated masses in an industrial society it must remain a mystery, symbolized by a policeman. But we have put law so largely outside of our cultural life that it is no necessary part of a liberal education. Future leaders of men are graduated from high school and college with only casual and incidental knowledge of their own rights and duties, or the legal structure of the society their votes will direct. We teach it only to those who want it as the working tool of a profession.

But Moses made Jewish law an indispensable part of Jewish education and culture. Manuscripts in early Israel were costly and rare, and few were able to read them. But Moses decreed that the whole law must be read to all the people once in seven years. Even the King must read it. No people have found in the law such deep meaning: none have taken it so seriously in daily life. It made up most of the Jew’s intellectual life; upon it he mediated when alone and discoursed when in company. This widely shared heritage of law was a cohesive force that for centuries bound the generations of Israel together intellectually and spiritually, though they were widely dispersed. What figure more fitting than Moses could stand as the symbol of Law that is a power within men as well as a power over them?

Transcribed by Charlene J. Peterson, 2004