For the land is Mine

In the first instance, God requires a specific sort of initial distribution once the Israelites enter the land: “And ye shall divide the land by lot for an inheritance among your families: and to the more ye shall give the more inheritance, and to the fewer ye shall give the less inheritance: every man's inheritance shall be in the place where his lot falleth; according to the tribes of your fathers ye shall inherit” (Num. 33:54). The land is to be divided in equal parcels by lot, with a greater number of parcels going to larger tribes (it is left to Joshua to perform this bureaucratic task once the Israelites have crossed the Jordan) (Josh. 11-13). A series of discrete laws is then introduced in order to preserve this initial distribution. First, since God had decreed that land should pass to a daughter in the absence of a male heir (Numbers 27:8), it was specified that “every daughter, that possesseth an inheritance in any tribe of the children of Israel, shall be wife unto one of the family of the tribe of her father, that the children of Israel may enjoy every man the inheritance of his fathers. Neither shall the inheritance remove from one tribe to another tribe; but every one of the tribes of the children of Israel shall keep himself to his own inheritance” (Num. 36:8-9). That is, in order to prevent the tribal balance from being disturbed by the routine incorporation of a female heir’s portion into the estate of her husband, such heiresses were required to marry a man from their own tribe. A closely related law is the remission of debts during the sabbatical year. God describes the requirement as follows:

Without question, however, the most significant of the land laws is the jubilee. After delineating the proper observance of the seventh year, God attaches special importance to the seventh sabbatical:

The later Biblical books suggest that this practice remained a central feature of Israelite law and self-understanding.⁴³ When Samuel warns the people against the perils of monarchy, one of his primary concerns is that a king “will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants” (I Sam. 8:14). And, indeed, one of the most infamous episodes in I Kings concerns precisely this disregard for the integrity of tribal inheritances. King Ahab covets the vineyard of Naboth, one of his subjects, and asks to purchase it. Naboth replies, “the lord forbid that I should surrender to you land which has always been in my family” (I Kings 21:3)⁴⁴—that is, Naboth claims to be acting in defense of the Biblically-mandated division of land. Samuel’s prophecy is then promptly confirmed when Ahab’s wife, Jezebel, conspires to have Naboth falsely accused of blasphemy, and then executed, so that his land can safely be confiscated. Ahab, evidently content with the results, then seizes his murdered subject’s patrimony, only to be famously rebuked by Elijah: “Thus sayeth the Lord, hast thou killed, and also taken possession?” (I Kings 21:19). The land laws, in short, retained enough prestige and authority during this period that the violation of them could be held up as a grave indictment of Israelite kingship.⁴⁵

Although scholars disagree as to whether the jubilee was ever in fact scrupulously observed in pre-exilic Israel, it is clear that it was not observed during the Second Temple period. The Talmud offers a rationale for this adjustment in BT Arakin 32b: "When the tribe of Reuben, the tribe of Gad, and the half-tribe of Manasseh went into exile, the Jubilees were abolished as it is said: And ye shall proclaim liberty throughout the land unto all the inhabitants thereof, i.e. [only] at the time when all the inhabitants thereof dwell upon it, but not at the time when some of them are exiled." That is, the rabbis concluded that, since the jubilee was instituted in order to maintain a particular tribal distribution, it made little sense to observe it now that several of the tribes in question no longer inhabited the land.⁴⁶ The issue of debt relief during the sabbatical year, however, proved rather more complicated from the rabbinic perspective. Did this requirement remain in force? As a matter of Biblical law, the rabbis declared (as we have seen) that it did not. In BT Gittin 36a, the Talmud quotes an explanation of this ruling offered by Yehudah HaNasi (c. 170-200 CE), the redactor of the Mishnah: “Rabbi says: [It is written], Now this is the matter of the release; [every creditor] shall release [Deut. 15:2]. The text indicates here two kinds of release,⁴⁷ one the release of land, and the other the release of money. When the release of land is in operation the release of money is to be operative, and when the release of land is not operative the release of money is not to be operative.” The rabbis conditioned debt relief on the observance of the jubilee—and since the latter had lapsed, the former was no longer in force. But the Talmud promptly adds that “the Rabbis ordained that it [debt relief] should be operative [i.e. even in the absence of the jubilee], in order to keep alive the memory of the sabbatical year.” Here the Talmud invokes a key distinction in rabbinic thought between Biblical commandments (mitzvoth mi-d’oraita) and rabbinic injunctions (mitzvoth d’rabbanan). The former have greater authority than the latter, but rabbinic rulings still carry legal force. In this case, the rabbis declared that, even though the Torah only requires debt relief when the jubilee is observed, the practice should nonetheless be maintained (purely on rabbinic authority), lest the Jewish people forget the land laws. Accordingly, the cancellation of debts in the seventh year remained part of Jewish law until well into the first century CE.

This remnant of the Biblical land laws would, however, likewise be allowed to lapse during the rabbinic period. The Talmud records that the great sage Hillel the Elder (c. 30 BCE-10 CE) became concerned when “he saw that that people were unwilling to lend money to one another and disregarded the precept laid down in the Torah. Beware that there be not a base thought in thine heart saying, etc. [Deut 15:9]” (BT Gittin 36a). That is, he noticed that, despite the Biblical injunction that one should not refuse to lend money to those in need simply because the sabbatical year is approaching, his countrymen were doing precisely that. In response, he formalized a procedure known as a prosbul,⁴⁸ according to which a creditor could appear in front of a rabbinic court and claim the right to collect a debt even after the year of release—in effect nullifying the purely rabbinic commandment for the continued observance of the sabbatical year. As a result, the cancellation of debts joined the jubilee in obsolescence.⁴⁹

Following Sigonio, authors in the respublica hebraeorum tradition increasingly tried to reach a more sophisticated and detailed understanding of the land laws, and the theory of property underlying them. The center of such scholarship was in the Netherlands, thanks to its large Jewish community and the easy access it afforded to printed versions of rabbinic materials.⁵⁵ The Huguenot scholar Franciscus Junius (François du Jon), for example, was appointed to the theology chair at Leiden in 1592, and promptly took the opportunity to pen his De politiae Mosis observatione, published the following year. Discussing the institution of the jubilee in Leviticus 25, he first argues that, although this law might at first appear to be purely “civil” in character, it should in fact be understood to issue “from a ceremonial grounding or principle” (ex principio sive fundamento ceremoniali). Junius’s reason is that “God wanted to show by means of a ceremonial observance that he himself was the owner of this land, and that this land or region belonged to him by the excellent law of landholding, and not to any other.”⁵⁶ Accordingly, “he commanded the Israelites by this measure to acknowledge the proprietorship of God most constantly, just as lords are accustomed to impose a law of fealty, or some such thing, upon their vassals, whom they call serfs, or even upon emphyteutae, and always to vindicate their plenary power.”⁵⁷ Here Junius is attempting to relate Israelite practice, not only to European villeinage, but also to the Roman law of Emphyteusis—according to which a tenant was given a perpetual right to possess and farm a piece of land, provided that he paid a required tithe to the owner at fixed times.⁵⁸ On Junius’s account, God intended the jubilee “to show that he is the owner of the territory, and that the Israelites are emphyteutae, or perpetual tenants (as the jurisconsults call them) out of the kindness of God their lord.”⁵⁹ Junius, in short, attempts to find an analog to the jubilee in classical antiquity; his method is one of comparative constitutional analysis. In this he is quite different from Sigonio, who, despite having produced learned compendia of both ancient Roman and Athenian law “in his youth” (olim iuvenis),⁶⁰ made no attempt to apply their insights to Israelite practice in this case.

Junius’s successors would frequently adopt his strategy of employing classical paradigms to understand the Hebrew land laws. His disciple Johannes Althusius, writing in the Politica methodice digesta of 1603, compared the jubilee (lex de anno jubilaeo) to the Athenian seisachtheia—or “release of burdens”—instituted by Solon in the sixth century BCE, on the grounds that one of its provisions required that all lands confiscated from hektemoroi (or “serfs”) as collateral should be returned to their initial owners.⁶¹ Hugo Grotius offered precisely the same comparison in his gloss on Lev. 25:10.⁶² What distinguishes Junius’s successors is, rather, the prominent role of rabbinic materials in their analyses of the land laws. While Junius neglects the rabbis entirely in his account, by the beginning of the seventeenth century the use of such sources had come to be regarded as indispensable. A good example in this regard is the English Hebraist and separatist minister Henry Ainsworth, who settled in Amsterdam in the mid-1590s and lived there until his death in 1622. Ainsworth begins his Annotations upon the five bookes of Moses, the booke of Psalmes, and the Song of Songs, or Canticles (written c.1611-1622),⁶³ by insisting that it is necessary to consult “Hebrew doctors of the ancienter sort, and some later of best esteeme for learning, as Maimony, or Rabbi Moses ben Maimon, (who abridged the Talmuds,) & others” if one wishes “to give light to the ordinances of Moses touching the externall practice of them in the commonwealth of Israel, which the Rabbines did record, and without whose helpe, many of those legall rites (especially in Exodus and Leviticus) will not easily be understood.”⁶⁴ When it comes to the Hebrew land laws, Ainsworth scrupulously follows his own advice. Maimonides is the primary source for his commentary on Leviticus 25. “The trompet of the Iubilee, and of the beginning of the yeer,” Ainsworth tells us, “is one in every respect,” and for this detail he credits “Maimon Iobel, ch. 10. sect. 11. and Talmud in Rosh Hasshanah, chap. 3.” On the requirement in Lev. 25:8 to count seven sets of seven years, Ainsworth explains that “the Hebrews hold, that this comandement of numbring seven times seven yeeres, and the commandement of sanctifying the fiftieth yeere, vers. 10. was given to the high Synedrion (or great Senate of Israel) onely: unto whom the care of proclaiming the Iubile and liberties of the same did belong. Maim. treat [sic] of the Intermissions and Iubile, ch. 10, sect. 1.” These passages, and many others like them, faithfully report Maimonides’s codification of the relevant laws in book seven of the Mishneh Torah.⁶⁵

We see, then, that by the turn of the seventeenth century it was far from unprecedented for Dutch Hebraists to relate the Hebrew land laws to various Greek and Roman institutions, and to use Maimonides and other rabbinic sources in order to explicate them. Nonetheless, when Petrus Cunaeus published his De republica hebraeorum in 1617, he was offering a truly epoch-making intervention.⁶⁶ He begins the treatise by defending his decision to study the commonwealth of the Hebrews, assuring his readers (in the 1653 English translation of Clement Barksdale) that this republic is “the most holy, and the most exemplary in the whole World. The Rise and Advance whereof, it well becomes you perfectly to understand, because it had not any mortall man for its Author and Founder, but the immortall God; that God, whose pure veneration and worship, You have undertaken, and do maintain.”⁶⁷ Because Israel had God for its lawgiver, “that people had Rules of Government, excelling the precepts of all wise men that ever were; Which Rules, we have shewed, may in good part be collected out of the holy Bible.”⁶⁸ For Cunaeus, Israel is the ultimate constitutional model, and, in the second chapter of Book I, he addresses what he takes to be its very foundation. The title of this chapter reads as follows: De lege agraria, deque eius inaestimabili utilitate. Redemptio agrorum. Beneficium Iubilaei. Restitutio gratuita agrorum. Iuris Talmudici quaedam sanctiones super ea re. De Maimonide, eiusque luculentissimis commentionibus (“On the agrarian law, and its inestimable usefulness; the redemption of lands; the benefit of the jubilee; the free restitution of lands; the requirements of Talmudic law concerning it; on Maimonides and his splendid commentary”).⁶⁹ Not only does Cunaeus announce his intention to use rabbinic sources (and Maimonides above all⁷⁰) in his analysis of the land laws, but he also insists that these measures should be called leges agrariae, equating them with the infamous agrarian laws of Roman antiquity. This he does with no fanfare at all, as if it were the most natural and obvious analogy one could possibly draw. But he was the very first to draw it, and, in doing so, he knew full well that he was forcing a dramatic reconsideration of the republican inheritance.

Cunaeus begins his account of the Hebrew agrarian by summarizing the principles of the initial distribution. He first establishes the size of the land of Israel, noting that “Flavius Josephus often cites Hecataeus of Abdera, an Author of great Faith and integrity,” who in turn reports that “the Jews inhabited a very good Country, and most fruitful, conteining three million Acres.”⁷¹ Cunaeus then explains that “so soon as the holy people had by force of Arms possessed themselves of the promised Land, the chief Captain Iosua presently put in execution the commands of Moses. The whole Country was divided into twelve portions, and gave it to be inhabited by the twelve Tribes. Then, he numbred the families in every Tribe, and according to the number of persons gave to every family a certain proportion of Lands, and prescrib’d their bounds.”⁷² The utility of this initial scheme, on Cunaeus’s account, was two-fold. First it ensured that “all were equally provided for; which is the prime care of good Governours in every Common-wealth.”⁷³ But it also had the effect of securing peace and good order, in that “had every one made that his own upon which he first set his foot, quarels and commotions among the people must needs have followed: for so it usually comes to pass; whilst every one seeks to get and appropriate to himself what was common, Peace is lost.”⁷⁴

Having provided his account and defense of the tribal distribution, Cunaeus then turns—like Sigonio and Junius before him—to an analysis of the mechanisms put in place to assure its continuity. His treatment of this topic is, however, markedly different from those of his predecessors:

Moreover Moses, as it became a wise Man, not only to order things at present, but for the future ages too, brought in a certain Law providing that the wealth of some might not tend to the oppression of the rest; nor the people change their course, and turn their minds from their innocent labours to any new and strange employment. This was the Agrarian Law; a Law, whereby all possessors of Land were kept from transferring the full right and dominion of it unto any other person, by sale or other contract whatsoever: For, both they that on constraint of poverty had sold their Land, had a right granted them to redeem it at any time; and they that did not redeem it, receiv’d it freely again, by this Law, at the solemn feast of Jubily.⁷⁵

The next step in Cunaeus’s argument should hardly come as a surprise, given what we have said about the character of early-modern republican thought. Once Cunaeus had convinced himself that the jubilee was a lex agraria, instituted by God in his own perfect commonwealth, he next had to revisit the conventional account of the Roman agrarian laws. That is, having established that Cicero, Livy, and the other Roman authorities must have had it wrong when they condemned the agrarian movement (because God trumps even Cicero), Cunaeus needed to retell the story of Roman decline in such a way as to vindicate the Gracchi and their acolytes. He turns to this task in the very next chapter, observing at the outset that “we have more to say of the utility intended by Moses in the Agrarian Law” (de legis agrariae utilitate). “Certainly,” he writes, “it was of great concernment to the Common-wealth, as before we noted, that the avarice of a few should not invade the possessions distributed with so fair equality. It is not unusuall with rich men to thrust the poor out of his inheritance, and deprive him of necessaries, whilst they enlarge their own estate superfluously.”⁷⁸ But Cunaeus now adds an additional consideration. A second problem about inequality, he maintains, is that “this produceth often a change of Government: For, the truth is, That Common-wealth is full of enemies, wherein the people, many of them having lost their antient possessions, with restless desires aspire to a better fortune. These men, weary of the present, study alterations, and stay no longer, than they needs must, in an unpleasing condition.”⁷⁹ As Cunaeus goes on to make clear, the particular case he has in mind is that of ancient Rome.