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diff --git a/77702-0.txt b/77702-0.txt new file mode 100644 index 0000000..da6a4cc --- /dev/null +++ b/77702-0.txt @@ -0,0 +1,1736 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 77702 *** + + + + + CAPITAL PUNISHMENT + AMONG THE JEWS + + A PAPER READ BEFORE THE + NEW YORK BOARD OF JEWISH MINISTERS + + BY + REV. D. DE SOLA POOL, PH. D. + + [Illustration] + + NEW YORK + BLOCH PUBLISHING COMPANY + 1916 + + + + + Copyright, 1916, by + BLOCH PUBLISHING COMPANY + + + + + CONTENTS + + + THE FOUR METHODS OF CAPITAL PUNISHMENT 1 + (a) _Stoning_ 2 + (b) _Burning_ 6 + (c) _Beheading_ 9 + (d) _Strangulation_ 12 + + JEWISH ATTITUDE TOWARDS CAPITAL PUNISHMENT 15 + + RABBINICAL MODIFICATIONS 21 + + LEGAL RESTRICTIONS 25 + + PRACTISE AND THEORY 35 + + POST-TALMUDIC DEVELOPMENT 46 + + + + +CAPITAL PUNISHMENT + + +In the following essay, an attempt is made at tracing the history of +capital punishment among the Jews. From the Biblical period onwards, +there took place a long and complex development of the principles, the +methods and the application of capital punishment. + +The story of this development is contained chiefly in the Old and the +New Testaments, Josephus, the Rabbinic writings and the Responsa of +the Middle Ages. The following study, which is based on these sources, +attempts to make clear what was the nature of this development. + + +The Four Methods of Capital Punishment + +According to a saying of the Rabbis, nine hundred and three different +methods of death have been created for man.[1] But Rabbinic +jurisprudence recognised only four legal methods of inflicting death as +the penalty for a capital crime, namely: stoning, burning, decapitation +and strangulation.[2] One man, Yakim (or Yakom), a nephew of Jose ben +Joezer (2nd cent. B. C. E.), is said to have killed himself by all four +methods at once. He first set up a beam from which he hung a noose. +Then he arranged faggots at the foot of the gibbet, surrounded them +with stones and set a sword with its blade pointing upwards in the +stones. He then kindled the faggots and hanged himself in the noose, +the flames burned away the rope so that his body fell into the fire, +and at the same time on to the stones and on the sword-blade.[3] + + +(a) _Stoning_ + +In appraising the Jewish attitude towards capital punishment in +general, it is necessary first to examine the history of these four +methods of capital punishment among the Jews.[4] The first to engage +our attention is STONING (_Sekilah_). + +In Biblical and Rabbinic legislation, stoning is the punishment decreed +for a number of transgressions, such as idolatry, Moloch worship, +magic, necromancy, false prophesying, Sabbath desecration, blasphemy +of God’s Name, cursing of parent, and other crimes, seventeen in all, +listed in the Mishna.[5] + +Stoning was apparently the usual method of inflicting the death penalty +in Biblical times whenever burning was not specifically called for.[6] +It was carried out outside the camp or town or at the gate,[7] by the +people or mob, without any other ceremony[8] than the casting of the +first stone by the witnesses.[9] + +In post-Biblical times, we find that according to John x, 31, “the +Jews took up stones again to stone” Jesus. According to Acts vii, 57f, +Stephen, the protomartyr of the Church, was stoned, but whether by the +uprising of the mob or by judgment of the court, is not clear.[10] +According to Luke xx, 6, the chief priests and the scribes and elders +feared to suggest that John the Baptist was not a prophet, because +if they did so “all the people will stone us.” In a passage which is +admittedly a Christian interpolation in Josephus, we are told that +the Sadducean high priest Anan (62 C. E.) removed James, the brother +of Jesus, and some others by stoning, after a semblance of a legal +trial.[11] + +In the Rabbinic literature also, there are incidental references to +actual cases of stoning, which may seem to imply that in the earliest +Rabbinic period lapidation was carried out in the simple manner +described in the Bible. In the Mishna,[12] it is stated that a priest +who ministered in the Temple in a state of ritual impurity was beaten +on the skull by the young priests, with blocks of wood.[13] In early +Rabbinic times, the death penalty by stoning was undoubtedly carried +out. Rabbi Eleazar ben Jacob (1st cent. C. E.) states that as an +exemplary measure, the Jewish court (_Beth Din_) in Grecian days, +imposed the sentence of stoning on one who rode on horseback on the +Sabbath.[14] Tosefta Sanhedrin ix, 5, mentions a definite case of a man +going out to be stoned. Tradition states further that Ben Satda, later +wrongly identified with Jesus[15], was stoned.[16] The Beth Din in +Jerusalem is also said to have inflicted the death penalty by stoning +for a case of apparent incest and for another gross crime.[17] But +whether any of these cases of stoning was carried out in the Pharisaic +method of precipitation described in the Mishna Sanhedrin vi, 4, is not +clear from the sources.[18] + +It may be asked what basis there was for the Pharisaic modification of +lapidation to precipitation. In a war with Edom, captive Edomites were +killed by being precipitated from a rock.[19] Two Jewish mothers who +had circumcised their children during the persecutions of Antiochus +Epiphanes are said to have been killed by being hurled from the wall of +the city.[20] The false witnesses who accused Susanna were similarly +dealt with.[21] The gospel according to Luke relates that the people +of Nazareth wished to cast Jesus headlong from the brow of the hill +whereon their city was built.[22] Precipitation was therefore a well +recognised modification of lapidation, and not a sheer invention of the +Rabbis. + +A similar modification was very early introduced in the treatment +accorded to the scapegoat. Instead of the scapegoat being sent forth +into the wilderness, as the Bible describes,[23] it was in practise +precipitated from a rock. Similarly, the Pharisaic tradition early +substituted precipitation for stoning in the case of human punishment. +According to a convincing emendation of a Talmudic text suggested by L. +Ginzberg,[24] precipitation had taken the place of lapidation at least +as early as the time of R. Jochanan ben Zaccai, (fl. 75 C. E.). + +The Rabbis held lapidation to be the most severe of the four death +penalties, and precipitation was regarded as a humane modification of +it. The Mishna states that the victim was thrown from twice a man’s +height, i. e., about 11 feet. But if you wish to ensure a certain and +easy death, asks the Talmud, why not cast him from a greater height? +The answer is given because that would lacerate the body.[25] The words +“his blood shall be on him”[26] were taken as implying that he shall +be so killed that the blood shall remain _in_ him. The change in method +advocated by the Pharisees therefore seems to have had for its purpose +the desire to make the death more humane, certain and speedy, and to +preserve the body so far as possible from being mangled. The custom +of giving to the one condemned a wine compounded with myrrh to dull +the senses,[27] would be another expression of this desire to rob the +punishment of its horror and pain. + + +(b) _Burning_ + +The second death penalty, that of BURNING (_Serefah_), is prescribed +by the Biblical law for a priest’s daughter who commits adultery, and +for the crime of incest with mother and daughter.[28] The house of the +guilty may also have been burnt.[29] There is no reason to doubt that +this punishment in Biblical times involved the actual burning of the +living victim.[30] + +In post-Biblical times, we find that on March 13, 4 B. C. E., Herod +burnt alive Matthias and his companions who had pulled down the golden +eagle set up over the gate of the Temple.[31] But this was the act of +a despotic monarch and not of a court of law. Josephus reports about +himself that the Galilean mob regarded him as a traitor, and some +cried out to stone the traitor and others to burn him.[32] This also +would have been the act of a passionate populace in wartime, and not +a legally imposed punishment. But there is one well attested instance +in early Rabbinic times of an actual burning by decree of a court of +law. This was reported by Rabbi Eleazar ben Zadok (fl. c. 100 C. E.), +who said that as a young child he had seen the adulterous daughter of +a priest bound around with vine branches and burnt.[33] His fellow +Rabbis, representing the Pharisaic tradition, declared that such a +course of action involving a literal burning, could have been carried +out only by an unlearned court (Mishna), or, according to R. Joseph, by +a Sadducean court.[34] The Book of Jubilees, which is also Sadducean +in its Halacha, prescribes burning for the marriage of a Jewess with a +non-Jew, for adultery and incest.[35] + +But the Pharisaic tradition, as is well known, mitigated the severity +of the punishment by changing it into strangulation followed by a +slight, almost symbolic burning of the throat and inward parts.[36] The +reasons for the change of method are apparently the same as in the case +of stoning, first, the desire to rob the death of its pain[37], and +secondly, to avoid marring the body. + +This latter reason is emphasized in the statement of Rab Mathna in +the Talmud[38], that the modification in the method was approved so +that the breath of life should be burnt out and the body preserved, as +was supposed to have been the case with the sons of Korah.[39] Rabbi +Eleazar adduces the same reason, referring to the case of the sons of +Aaron.[40] The Tannaitic tradition held that Nadab and Abihu met their +death through two narrow tongues of flame coming forth from the holy of +holies, each dividing into two and entering into the nostrils of the +two men, thus burning out the breath of life and leaving their clothes +and their bodies uninjured.[41] Similarly, the Syriac Apocalypse of +Baruch says that Sennacherib’s army was burnt by God only within +their bodies.[42] This statement reflects the Midrashic tradition +that because Shem covered his father’s nakedness, the clothing of his +Jewish descendants Nadab and Abihu, and of his non-Jewish descendants +composing Sennacherib’s army, was not burnt when the fire of the Lord +burnt out their lives.[43] + +In all this is emphasized the Pharisaic desire to preserve the body +of the victim uninjured. According to R. Joseph, who declared that a +court which sentenced to an actual burning must have been a Sadducean +court,[44] this consideration was not of weight with the Sadducees. It +has been suggested therefore, that this desire of the Pharisees may +have been connected with their belief in the resurrection of the body, +a belief rejected by the Sadducees.[45] + +The method of burning advocated by the Pharisees does not seem to go +back beyond the Christian era. The incident of the actual burning of +the priest’s daughter, witnessed by Rabbi Eleazar ben Zadok shortly +before the fall of the Temple, might be interpreted as implying that +the change in method was then taking place.[46] There is no mention in +the sources of a case of burning being carried out in the Pharisaic +manner, although the full details preserved in the Mishna, describing +the application of the method, would imply that the method had been in +use. But the number of cases of the possible application of the penalty +was limited, and a burning must have been a rare occurrence. + + +(c) _Beheading_ + +The third legal capital punishment recognised by the Rabbis is +BEHEADING (_Hereg_). Death by the sword, although recognized in a +blood feud and often used by kings,[47] is nowhere mentioned in the +Bible as a penalty ordered by law, except for the apostasy of a whole +community.[48] According to the Mishna,[49] murder also is punished +by beheading. The Boethusians,[50] the Samaritans,[51] Philo,[52] +Jesus,[53] Josephus,[54] the Book of Jubilees,[55] Eliezer ben +Hyrcanus, (1st cent. C. E.),[56] like the later Karaites,[57] all agree +in recognizing the Biblical talio as the punishment for murder. This +does not necessarily imply that the _method_ of inflicting the death +penalty had to be the same as the method used by the murderer. It +implies only that murder was punishable by death. + +The Pharisaic ruling that the death penalty for murder was inflicted by +decapitation is not disputed by any of the Rabbis.[58] But the method +of the execution is debated. The Mishna states that the victim’s head +was cut off at the throat with a sword, as the (Roman) government +carried out an execution.[59] R. Jehudah (135-220 C. E.) objected +that this _jus gladii_ would disfigure the victim.[60] He therefore +advocated, that instead of the old method recognized by the Rabbinical +tradition, the murderer’s head should be placed on a block and chopped +off at the neck with an ax. The Rabbis protested that this method of +beheading advocated by R. Jehudah would be far more shameful to the +victim than that common to the Jews and the Romans. R. Jehudah admitted +the force of their objection, but defended the method advocated by him +because it was not the same as Roman custom. The Talmud then proceeds +to eliminate other possible methods of killing by the sword, such as +piercing or cleaving the body, by quoting the principle of the golden +rule “Thou shalt love thy neighbor as thyself.”[61] Therefore we must +choose for him the easiest death. The comparison is then brought with +the heifer that was killed to atone for bloodshed.[62] As the heifer, +the substitute for the unknown murderer, was killed by having its +throat cut, so the known human murderer had his throat cut and not his +head chopped off at the neck, the golden rule again being quoted as +authority.[63] + +In this case also the sources do not mention an actual case of +decapitation being carried out by a Jewish court. According to the New +Testament, Herod Antipas had John the Baptist killed by beheading,[64] +and Agrippa I. caused James the apostle, the brother of John, to be +killed by the sword.[65] But neither of these executions was ordered +by a Jewish court of law. + + +(d) _Strangulation_ + +The fourth method of capital punishment recognised in Pharisaic +tradition is STRANGULATION (_Henek_). + +Strangulation does not appear in the Bible as a recognised legal method +of punishment. The only Biblical instance of death by strangulation is +the suicide of Ahitophel.[66] + +The Mishna[67] specifies strangulation as the punishment for the +son who purposely wounds his parent, for the false prophet, for the +one who prophesies in the name of idolatry, for stealing a Jew, for +adultery with a married woman, seducing a priest’s betrothed or married +daughter, etc. It was the method of capital punishment preferred by the +Rabbis; for R. Yoshia said that wherever the Bible does not specify +the method of carrying out the capital sentence, strangulation should +be adopted because it is the least severe measure. Rabbi Jonathan +also said that strangulation should be adopted, even though in his +judgment strangling is not an easier method of death than other +methods.[68] The reason for this preference seems to be because of the +four legally recognized methods of capital punishment, strangulation +as it was carried out was the only one which left the body practically +uninjured. The condemned man was to be sunk up to his knees in mud +and then strangled by having a hard cloth which was wrapped in a soft +one twisted around his neck and pulled in opposite directions until +the suffocated victim died.[69] Strangulation therefore satisfied the +Rabbinic desire to avoid marring the body far better than did stoning, +burning or decapitation. R. Jehudah explains that the death penalty as +inflicted by man should be like that inflicted by God in not injuring +the human body.[70] This consideration it was, also, as we have seen, +that played a large part in inducing the Rabbis to mitigate the method +of burning, by reducing it to strangulation followed by an almost +symbolical burning. + +Again, in this case, the sources do not mention any definite case in +which the punishment of strangulation was actually carried out as a +result of a court judgment. But it is clear that strangulation induced +in the older manner of hanging was not infrequently consummated in +the earlier Rabbinic period. Raguel’s daughter Sarah “thought to +have hanged herself.”[71] A proverbial remark in the mouth of Rabbi +Akiba (d. c. 132 C. E.), ‘if you wish to strangle yourself, hang +yourself on a high tree’,[72] would indicate that hanging was a well +recognised method of death. According to one source, Judas Iscariot +hanged himself.[73] It is reported by Rabbi Eleazar,[74] that Simon +ben Shetach (fl. 80 B. C. E.) hanged women in Ascalon. But in this +case the question arises whether they were hanged alive or hanged as a +reproach after they had been otherwise killed. + +Hanging, according to Biblical custom, was meted out to the _dead_ +body of one who had been otherwise killed. The order of the words in +Deut. xxi, 22, 23 implies, that first the malefactor has been put to +death, and then as an added indignity his corpse is suspended. The +same treatment of hanging the corpse was meted out to the murderers +of Ishbosheth.[75] Similarly, Joseph tells the chief baker that in +three days Pharaoh will take off his head and then hang his dead +body.[76] The dead bodies of Saul and Jonathan were hung up by the +Philistines.[77] The five kings were first killed by Joshua and then +hanged.[78] A momentary hanging of the corpse was recognised by the +Rabbis in the case of the male idolator or blasphemer.[79] From these +examples of Jewish custom and from the context in the Mishna and +Talmuds, it becomes clear, that the witchcraft victims of Simon ben +Shetach’s zeal, were hanged in ignominy _after_ the death penalty had +been otherwise inflicted. In any case, the discussion in the Mishna +and the Talmud[80] shows that the action of Simon ben Shetach was +an exceptional action, from which no conclusion as to the regular +course of law could be drawn. There is consequently no evidence of +hanging alive ever having been carried out by a judicial sentence +of the Rabbis. It need scarcely be added that the Roman punishment +of crucifixion was a penalty unknown to Jewish law and abhorrent to +Jewish feeling. The inhuman savageness shown by Alexander Jannaeus in +crucifying his prisoners of war was no more a legally recognised form +of capital punishment than was his cutting the throats of the wives and +children before the eyes of the crucified victims.[81] + + +Jewish Attitude Towards Capital Punishment + +Having summarized the history of the four methods of legal capital +punishment recognised by the Jews, we are now in a position to review +more broadly the question of the Jewish attitude towards capital +punishment. + +The Hebrew Bible undoubtedly stands for the principle of capital +punishment, as has clearly emerged from the detailed consideration +of the particular methods of inflicting the death penalty set forth +above. In Biblical times, when the organization of Jewish society was +comparatively simple, retributive justice brooked few of the law’s +delays. In the simplest and most rapid manner, the avenger of blood +exacted the penalty of life for life. Society protected itself by a +swiftly effective punishment. + +But the Bible recognises in capital punishment also a deterrent +character and an expiatory character, in addition to its retributive +character. It holds capital punishment to be a necessity as a +deterrent. The phrases “and thou shalt remove the evil from thy +midst,” “and Israel shall hear and understand and no more do this +evil,” which occur many times, coupled with the admonition to impose +capital punishment, show that this preventive purpose was closely +associated with the imposition of the death penalty. Malicious false +witnesses had to be treated as they would have treated the one against +whom they had testified, so that the public should take warning.[82] + +The Bible also teaches explicitly that capital punishment is the just +punishment for murder, in order to atone for the pollution of the +land.[83] No pity was to be shown to the wilful murderer.[84] The right +of sanctuary granted to the one guilty of manslaughter, was not granted +to the murderer,[85] and the crime of shedding innocent blood had to be +atoned for in order to cleanse the sacred community of Israel.[86] + +Yet the old Testament teaching of justice is tempered by mercy. “But if +the wicked turn from all his sins ... he shall surely live, he shall +not die.... Have I any pleasure in the death of the wicked? saith +the Lord God; and not rather that he should turn from his way and +live.”[87] It was a duty to try to save those going to death.[88] + +The New Testament also admits the right of society to exact capital +punishment.[89] We have seen that Philo, Josephus[90] and the +apocryphal and apocalyptic books also do not doubt the reasonableness +and necessity of capital punishment. In the last pre-Christian +century, the Jewish people, particularly the Sadducees who were in +the ascendant, still followed the Bible in their maintenance of the +theory and the practise of capital punishment. The letter and the +spirit of the Biblical laws governed Jewish practise. But in the first +post-Christian centuries, these teachings of the Bible were modified in +many directions. + +It may be safely affirmed that the Rabbis did not question the right +of society to inflict capital punishment, even though they pictured +God as grieving over the death of the wicked.[91] In the Mishna, they +enumerated thirty-seven crimes (nineteen of morals, twelve of religious +law, three against parents and three assaults), which they held to be +punishable by death. In commenting on the Biblical warning “thine eye +shall not spare the wilful murderer,” they say ‘thou shalt not say +wherefore should I punish murder by murder. The one whom thou knowest +indubitably to be guilty of a premeditated murder thou shalt not pity +nor spare.’[92] The sternness of the capital sentence was recognised by +the Rabbis as being in the best interests both of the criminal and of +society.[93] “When the wicked perish there is joyful shouting,” was +quoted in justifying the death penalty, to convince those who hesitated +to help bring a capital offender to justice.[94] R. Akiba declared that +so long as sinners such as Achan remain alive, the Divine anger rests +upon the community. But when they are put to death, the Divine favor +is restored.[95] The noxious thorns in the garden of humanity must be +destroyed.[96] When Akiba (d. c. 132 C. E.), claimed that had he been +a member of the Sanhedrin, a death sentence for murder or immorality +would never have been imposed, Rabbi Simon ben Gamliel retorted “had +you been a member of the Sanhedrin, you would have been responsible for +the increase of murders.”[97] + +The Rabbis also approved of the preventive character of the Biblical +death penalty. For instance, the death penalty for the rebellious, +gluttonous son, is regarded by them not as a punishment commensurate +with the wrong that the son may have committed, but as a preventive +measure, necessary for society and necessary for the criminal. In +explaining why the son must pay the penalty of death even though he has +not spilled blood nor committed any major offence, they say that the +Torah looks ahead. Let him die before he has incurred graver guilt; +otherwise, he will sink lower and lower until finally he commits +a capital offence. Therefore he should be put out of the way as a +preventive measure.[98] Although we immediately see the danger lurking +in such a principle of preventive punishment, the recognition of this +principle by the Rabbis is further evidence that in theory they +approved of the death penalty. + +Furthermore, the Rabbis approved of a fitting retribution. Biblical +justice demands that the punishment correspond with the crime. He who +digs a pit should fall into it.[99] The Psalmist prays that God may +repay the wicked according to the works of their hands.[100] The Rabbis +recognise this principle of retribution in kind in every phase of +life.[101] The principle underlying the talio is that which they call +“measure for measure.”[102] Bloodshed, according to this principle, +could be expiated only by bloodshed.[103] + +The Rabbis also saw in the death penalty an expiation of the sin that +had been committed. This supreme expiation was religious in character, +and was brought into connection with the Temple and its sacrificial +worship. Thus it is stated that only so long as the altar stood,[104] +or the priest officiated,[105] could the death penalty be carried +out.[106] According to the opinion of R. Akiba,[107] a capital sentence +on “a defiant elder” could not be consummated outside of Jerusalem, nor +even in Jabneh by the great Sanhedrin, while the Temple still stood; +but he should be brought to Jerusalem and put to death on one of the +middle days of the next festival when the city and the Temple were +thronged with worshippers. Those condemned to death were given the +opportunity to confess their sins when within ten cubits of the place +of execution, the confession opening for them the gates of the future +world.[108] It is related of one condemned man that when bidden confess +he prayed “May my death be an atonement for all my sins”....[109] If +the condemned man was unable to confess fully, he was bidden say “May +my death be an atonement for all my sins.”[110] + +These four considerations, (a) the plain command of the written word +of the Torah, (b) the recognition of the deterrent and preventive +value of capital punishment, (c) the claims of just retribution and +(d) the recognition of the expiatory character of the death penalty, +leave it beyond doubt that the Rabbis approved of the theory of capital +punishment. They accepted without question the teachings of the Torah, +implying the justifiability of imposing the death penalty. At the same +time, numberless passages testify to the sacredness in which they held +human life,[111] and many passages prove that they had a vivid sense +of the irrevocability of a consummated death sentence. To put a man to +death wrongfully is as though one destroyed the whole world.[112] + + +Rabbinical Modifications + +But it is no less clear that the Rabbis did not favor capital +punishment in practise. It is true, as will be shown later, that after +the fall of the Temple in 70 C. E., they no longer had the right of +imposing the death penalty. But we possess their theory of what their +practise would have been had they had the opportunity of exercising it, +and this theory tends altogether in the direction of modifying capital +punishment to its virtual abolition. + +The problem with which the Rabbis grappled was how could the death +penalty which was demanded by the Law be mitigated in the face of +the explicit words of the Torah. Commutation of the death sentence +by a fine or by wergild could not be considered where the Bible did +not specify the option of a ransom (_Kofer_). The Torah expressly +prohibits modifying into a fine the death penalty which was the due of +the murderer.[113] The Bible furnishes no precedent for commuting the +death penalty to one of deportation. Exile involved the banishment of +the Jew from the full exercise of Judaism. Herod was condemned for +selling law-breakers out of the kingdom. “For slavery to foreigners and +such as did not live after the manner of the Jews, and necessity to do +whatever such men should command, was an offence against our religion +rather than a punishment to such as were found to have offended, such +a punishment being avoided in our original laws,”--the Bible.[114] +The cities of refuge no longer had asylum power. Exile was considered +a more grievous punishment than death by the sword or by starvation +and was regarded as harder even than death, itself the hardest of the +ten hardest things created in the world.[115] Enslavement to Jews was +specified by the Bible as a legitimate punishment only in certain +cases.[116] Similarly, both the application and the severity of +scourging were limited.[117] + +Prisons in Jewish antiquity were used usually as a ward house in which +the accused was detained until sentence could be pronounced.[118] +But sometimes the prison seems to have been used also as a punitive +institution.[119] In one instance, the principle of commuting a death +penalty to a sentence of life imprisonment is recognised. The Mishna +prescribes[120] that when a man has twice committed a crime for which +excision is the penalty and he has received the lash twice, on his +committing this crime a third time, he is imprisoned and fed on barley +until he bursts. Or when one has committed a murder and there are no +witnesses to condemn him, he is imprisoned and fed on frugal fare of +bread and water.[121] In other words, when a murder has been committed +and it is certain that the accused man was the murderer, but owing +to legal technicalities,[122] it is impossible legally to prove his +guilt; or if the circumstantial evidence is thoroughly convincing,[123] +the Rabbis felt that it would be dangerous to society and against all +principles of justice to allow such a known murderer to go free. In +any of these cases, he should be imprisoned in a den of the height or +length of a man and fed in such a manner as to bring about his early +death. This seems to be the only passage in Rabbinical literature +in which imprisonment is spoken of as a possible mitigation of the +immediate death penalty. + +From one passage[124] it would seem that in later Rabbinic times, (c. +350 C. E.), when the penalty of death for murder could no longer be +imposed by the Jewish court, it was recommended that the death sentence +be commuted into one of blinding the murderer. When it was reported +that Bar Chama had committed a murder, the Exilarch bade Rab Abba (or +Acha) bar Jacob investigate the case. If it proved that Bar Chama +was guilty, his eyes should be put out.[125] But this passage stands +alone, and does not allow us to draw any conclusion as to a general +practise. Moreover the expression “to put out his eyes” may possibly be +figurative, meaning imposing a fine or taking away authority.[126] + +We see, therefore, that the necessity of adhering to the express +commands of the Torah prohibited the Rabbis from commuting a death +sentence into scourging, imprisonment, blinding or any other kind of +mutilation, exile, enslavement, a fine or any other punishment. The +exact words of the Torah had to be upheld. + +Therefore, while rigidly maintaining the Biblical principle of capital +punishment, the Rabbis availed themselves of their right to modify the +_method_ of executing the death sentence. If they upheld the death +penalty, there was nothing to prevent their mitigating the severity of +its application in every way possible. We have already seen how stoning +was modified in practise to precipitation, and burning modified to +strangulation followed by a nominal burning. Our consideration showed +that these changes in method apparently came about in order to secure +the easiest and most humane methods of death, (since according to the +golden rule even the condemned criminal is one’s brother), and in order +to spare the body, so far as possible, all mutilation or disfigurement. +The general principle governing the lightening of the methods of death +was that wherever the Torah does not specify which method of death is +to be employed, the easiest and most humane method is to be used.[127] + + +Legal Restrictions + +But the most thoroughgoing modification of the system of capital +punishment was not brought about through change in the methods of +imposing the death penalty, but through surrounding the accused with +so many legal safeguards that it became virtually impossible ever to +impose a death sentence. + +The law limited the right of trying capital cases to the high tribunal +of twenty-three, not even the king having the right to put to death +other than through the Sanhedrin.[128] According to Rabbinical +tradition, one very large class of capital cases was taken out of +the jurisdiction of any human court, namely those in which the Bible +stipulates _Kareth_ or Excision as the punishment. This ruling at one +stroke absolved the Rabbinical courts from the obligation of imposing +the death sentence in a large number of cases. + +In many passages in the Pentateuch it is stated that the one committing +certain transgressions “will be cut off from his kinsfolk.”[129] +Modern Biblical scholars understand the phrase as referring to the +imposition of the death penalty by the court. The Karaites also +understood _Kareth_ in this sense, through a comparison of Exod. xxxi, +14b with the parallel passages xxxi, 14a, 15 and Num. xv, 35. The +one passage prescribes _Kareth_, the others prescribe death as the +punishment for Sabbath profanation. Similarly _Kareth_ in Lev. xx, 3 is +the equivalent of stoning, the punishment designated in the preceding +verse for Moloch worship; and _Kareth_ for blasphemy in Num. xv, 30 +is the equivalent of stoning mentioned as the punishment for the same +crime in Lev. xxiv, 14. The fate of Achan,[130] of Naboth,[131] and of +the adulteress,[132] would seem to show that the whole family of the +convicted person could judicially be put to death. In some cases,[133] +the death penalty is specified as well as the penalty of _Kareth_. + +None the less, the Rabbis consistently understand _Kareth_ to be not +a death penalty inflicted by man but a punishment left in the hands +of Heaven. Thus the Rabbis interpret _Kareth_ specifically as dying +childless,[134] or as dying at 50 years, or, according to Raba, between +50 and 60 years, before completing the otherwise destined span,[135] +or as the cutting off of the soul in the future life.[136] For this +interpretation of _Kareth_ as a punishment by Heaven would speak the +personal pronoun in the phrase, “_I_ will cut off,” the active form +sometimes used.[137] For this would also speak the passages wherein +the death penalty is threatened as well as _Kareth_, usually adduced +as favoring the other interpretation of _Kareth_, if we understand +them, as we well may, as threatening an alternative, _either_ the +death penalty by the court _or Kareth_ by God. That this may be the +meaning is clear from a careful reading of Lev. x, 1-5, wherein the +Moloch worshipper is threatened with death by stoning at the hands of +the people, or if the people do not so punish him, then God will cut +him off. Such phrases as “they shall bear their sin,”[138] or “they +shall bear their sin and shall die childless,”[139] or “they shall die +childless,”[140] would also be most naturally understood as taking +the right of punishment away from the human court and leaving it to +Heaven. It has been suggested that the Niqtal form, usually translated +as passive “and shall be cut off,” should be understood in a reflexive +sense, “(that soul) cuts itself off.” But this explanation seems +unlikely in face of the occurrence of the active forms “I will cut off” +or “and I will destroy that soul from the midst of its people.”[137] +Whatever be the preferable explanation of _Kareth_ in each passage in +which the term occurs, the interpretation consistently given to it by +the Rabbis is highly significant. Their tendency away from capital +punishment is clearly seen in their leaving to the heavenly tribunal +the punishment in all cases where _Kareth_ is prescribed in the +Bible.[141] + +The other restrictions in court procedure are too well known to need +setting forth here in detail. It is enough to mention some of the rules +of evidence, particularly the minute safeguards with which the giving +of testimony was surrounded. Torturing of witnesses to extract from +them convicting evidence was entirely unknown. The aim of the court was +to lead the witnesses into giving evidence favorable to the accused, +not to coerce them into helping condemn him. According to R. Jose b. +Jehudah, a witness could testify only in favor of the accused.[142] The +two witnesses had to be free adult men,[143] sound in mind and body, +of unquestioned integrity,[144] and free of all suspicion of personal +relationship to the defendant[145] or interest in the case.[146] They +were first solemnly warned and adjured as to the blood responsibility +resting on them and their heirs after them.[147] They were then +cross-examined separately,[148] very searchingly,[149] with the +_haqira_ affecting place,[150] time, the warning, etc., and with the +_bediqa_ going into the smaller details.[151] A slight contradiction or +discrepancy in their evidence invalidated their testimony.[152] They +had to prove the act, and, what was far more difficult, prove also the +intention. In order to be able to prove deliberate and understanding +premeditation, the witnesses must both have warned the accused before +he committed the crime,[153] with a clear warning (_Hathraa_), +including a definite reference to the kind of punishment and the +measure of punishment which his act would involve.[154] The warning +given by them had to have been so clearly understood, that the accused +had replied that he would commit the crime none the less, thereby +showing that he had fully understood the warning.[155] The act must +have followed closely on their warning, or the warning by the witnesses +was not considered adequate, on the ground that in the intervening time +it may have escaped the culprit’s memory.[156] If there was a technical +flaw in the giving of this warning by the witnesses, the accused was +given the benefit of the doubt that there had not been _dolus_ but +only _culpa_,[157] and where the crime was not premeditated, no death +penalty could be imposed.[158] + +Further, circumstantial or presumptive evidence was disallowed. The +witnesses had to have seen each other when the act was committed,[159] +and had to have seen the act itself, and not only what went before +it or what followed it. For instance, even in early Rabbinic days, +Simon ben Shetach (fl. 80 B. C. E.), who undoubtedly believed in and +imposed the death sentence during his lifetime,[160] did not consider +the strongest circumstantial evidence as evidence. It is related[161] +that he once saw one man pursuing another. He followed them and found +the pursued man murdered and the pursuer holding a sword dripping with +blood. Simon said to the murderer: ‘Either you or I killed this man. +But what can I do? Your blood guilt is not delivered into my hands; +for the Torah says[162] that you can be condemned only by the actual +testimony of two or more witnesses. May God who knows the inward +thoughts requite the one who committed this murder.’[163] + +In these and in similar ways, tradition developed the rules contained +in the Torah, that two witnesses were needed and that the witnesses +themselves had to carry out the death sentence. As the number of +necessary conditions increased, it became virtually impossible in +a capital case to obtain unassailable testimony adequate for a +condemnation. + +Many other legal refinements made it still more certain that no one +would ever be legally condemned to death. For example, murder was not +punishable by death, as we have seen, if it could be proved to have +been not fully premeditated or intentional. Thus, if the murderer had +meant to kill one man and had killed another; or had he meant to wound +him on the thigh and instead had struck him on the heart and killed +him, capital punishment could not be meted out, since the criminal +intent to kill was not present.[164] Again, if the murderer were +weak-minded, or intoxicated, or a deaf-mute, or a minor, or acting +under compulsion or acting in self defence,[165] etc., he could not be +condemned to death. Or again, if the man murdered had been fatally ill +or for any other reason would not have lived had he not been murdered, +the guilty man was not considered liable to the death penalty. And even +if the murderer was suffering from an illness that in the ordinary +course would shortly kill him, the court would not anticipate God’s +decree by carrying out the death penalty. + +But over and above these thick protecting hedges which made it +virtually impossible to obtain a death sentence, there were many other +considerations which further removed the possibility of executing +a capital sentence. Thus there was a thoroughgoing rule that no +punishment affecting the personality of a man[166] might be imposed on +a deduction a fortiori.[167] Unless there was explicit Biblical warrant +for the death penalty, it was prohibited to deduce this penalty by +rules of interpretation, a principle in itself that worked consistently +towards moderating the severity of the written law. + +Moreover, just as the power of the witnesses was minimized and the +rights and privileges of the defendant were magnified, so also the +rights and privileges of the judges were hemmed in and restrained +in every way. Only a high court of twenty-three could try capital +cases.[168] The judges all had to be picked men of high standing, +character and attainments.[169] They were impressed with the words +of their own warning to the witnesses, that he who causes a soul to +be put to death unjustly is as though he had destroyed the whole +world.[170] When engaged on a capital trial, they were put under +severe discipline.[171] They took the place both of the counsel for +the defendant and of the jury.[172] Two death penalties could not +be pronounced on one day.[173] For final condemnation, a second +ballot had to be taken on the following day.[174] If twelve of the +twenty-three judges were in favor of acquittal against the other +eleven, the defendant was freed by the majority of one. But if twelve +held him guilty and eleven held him innocent, the defendant could not +be condemned by the majority of one. A majority of at least two was +necessary for a condemnation.[175] A judge was not permitted to change +his mind and declare his decision for a condemnation when once he had +voted for an acquittal.[176] Unless each judge could give an individual +reason for his opinion his vote was not counted.[177] According to the +striking opinion of Rab Kahana, if the judges were unanimously in favor +of _conviction_, the accused should be freed.[178] In general, it was +held to be better that the guilty should escape punishment than that +one innocent man be put to death. The judges had the less hesitancy +in inclining to mercy, because of the belief that God would not allow +the guilty to remain unrequited.[179] In the story of circumstantial +evidence quoted above, Simon ben Shetach left the punishment of the +murderer to God. When the Jewish courts no longer had jurisdiction, +it was felt that God would fittingly punish those who had rendered +themselves legally liable to the death penalty.[180] The Mechilta, +elaborating the Biblical words “For I, God, will not let the guilty go +free,”[181] says, that if one who is guilty has been discharged by the +court as not guilty, he is not to be taken back for a retrial. God has +instruments and means enough to bring upon him the punishment that he +has incurred. + +After an acquittal there could be no appeal; but after a conviction +an appeal could be lodged at any time.[182] If one ultimately was +condemned, he was given every facility to escape his fate through +the publicity of a herald’s proclamation,[183] through the assiduous +attempt to elicit new favorable evidence even during the procession to +the place of execution,[184] etc. + +Examples of legal safeguards could readily be multiplied. But it is +sufficient for our present purpose to sum up these details by saying +that the publicity of the trial, the confrontation of the defendant +and the plaintiff, the absence of torture, the careful elimination of +improper witnesses, the solemn warning to the witnesses, the searching +examination of the witnesses, the remarkable requirements for a valid +warning, the extraordinarily high standard as to what constituted +evidence, the equally extraordinary number of loopholes allowed to the +defendant, the limitations on the court, forbidding it to deduce a +capital punishment if the Bible did not explicitly call for one, the +immediate acquittal by any majority of the judges, the postponement of +the final decision if a majority were in favor of death, the obligation +on those who had voted against the death penalty of keeping their +vote unchanged at the second ballot, together with the permission to +change their opinion granted those who had voted in favor of the death +penalty, the right of the judges after a condemnation to change their +opinion any time before the execution, the constant public appeal +for further evidence until the final execution, the prohibition of +more than one capital sentence being pronounced in one day, and other +innumerable elements of legal interpretation and procedure, all worked +to make legal capital punishment impossible of practical application. + + +Practise and Theory + +In view of the fact that in pre-Christian and the earliest Rabbinic +times legal capital punishment was carried out, as has been shown +above, it becomes necessary to inquire when and why the practise of +capital punishment ceased among the Jewish people. In Biblical times, +and in post-Biblical times when the Sadducees controlled Jewish +life, the old death penalties were carried out without essential +modification. But under Roman rule, a change took place. Schürer +claims[185] that from the very beginning of the Roman dominion the +Jewish courts lost their competence to judge capital cases. According +to the gospel according to John, Pilate is made to say to the Jews, +“Take Jesus yourselves and judge him according to your law. The Jews +said unto him, ‘It is not lawful for us to put any man to death.’”[186] +Talmudic sources state that forty years prior to the destruction of +the Temple, i. e., 30 C. E., the right of deciding capital cases +was taken from the Jewish courts.[187] But Rab Joseph, R. Hiyya and +the school of Hezekiah taught, that this right was taken away from +the Jews by the Roman government, from the time that the Temple was +destroyed, i. e., 70 C. E.; adding, that the Sanhedrin abolished the +practise though not the theory of the four death penalties.[188] Of +these two dates given by the Rabbis, the second is apparently correct. +The earlier date, 30 B. C. E., probably arose from a misunderstanding. +The original statement made by R. Ishmael b. Jose, (end of the second +century), was that forty years before the destruction of the Temple, +the Sanhedrin moved from the Temple and held its sessions in a shop. +There is no reason to doubt this statement, Schürer notwithstanding. +But R. Isaac bar Abdimi added to it: “This implies that they no longer +judged capital cases.” This second statement is seemingly not an +historical tradition, but only an inference drawn on the theory that +capital sentence could be pronounced only in the special hall of the +Sanhedrin in the Temple. This inference is disproved by a number of +historical facts, which show that the Rabbinical courts had competence +in capital cases in Roman times until the destruction of the Temple and +of the Jewish State in 70 C. E. Josephus mentions the reluctance of the +Pharisees to impose the death penalty, contrasting them in this regard +with the Sadducees.[189] He states further that when a Sadducee became +a judge, he would adopt Pharisaic norms of judgment, because the public +would not otherwise tolerate him.[190] Elsewhere[191] he mentions that +the Essenes punish blasphemy by death. These three notices, although +not necessarily referring to post-Christian times, are significant when +taken in connection with the following facts. Up to the time of the +destruction of the Temple, the Romans granted to the Jews the right to +put to death any foreigner, even a Roman citizen, who passed beyond the +Temple limits,[192] and there is no warrant for Schürer’s supposition +that this right could be exercised only after obtaining the sanction +of the procurator.[193] Certainly under King Agrippa, 41-44 C. E., +this Jewish law of capital punishment was in force.[194] The story of +the trial of Stephen[195] and the different accounts of the trials of +Paul before the Sanhedrin,[196] although they are often untrustworthy, +presuppose the competence of the Sanhedrin to judge capital cases at +a period later than the year 30 C. E. Anan, the Sadducean high priest +for three months in 62 C. E., is said by Josephus to have imposed and +carried out the death penalty.[197] Rabbi Eleazar ben Zadok cannot have +seen the burning of the high priest’s daughter[198] prior to 40 C. E., +since in the year 70 C. E. he was still a young man. + +There seems therefore to be no valid reason for doubting the statement +of R. Joseph, R. Hiyya and the school of Hezekiah, that the Roman +government allowed the Jewish courts a measure of jurisdiction in +capital cases up to the time of the destruction of the Temple in 70 +C. E.,[199] but that after that date the Jewish courts were no longer +allowed this jurisdiction. Origen (d. 254 C. E.) says that the Jewish +law can no longer punish the murderer or stone the adulteress because +the Roman government has assumed these rights.[200] The Didascalia[201] +also remarks, that the Jewish law of capital punishment is no longer in +force. The Talmud testifies uniformly that the Jewish courts had no +power over life and death after the year 70 C. E. + +But there are some minor exceptions to this that must be noted. + +(i) A certain R. Hama b. Tobiyah caused Imarta, daughter of the +priest Tali, to be burnt. But his action was condemned, both because +the sentence had been carried out in the barbarous non-Pharisaic +method that R. Eleazar ben Zadok had seen in his youth,[202] and +because a capital sentence had been imposed after the destruction of +the Temple.[203] (ii) On one occasion a certain Tamar was condemned +(although not to capital punishment) by Rab Ammi, Rab Assi and Rab +Hiyya b. Abba in Tiberias (c. 300 C. E.). She complained to the +Roman proconsul in Caesarea of this usurpation of the Roman right of +judgment, and the influential intervention of Abbahu was required to +protect the Rabbinical judges.[204] (iii) On another occasion, Rab +Shila, perhaps the Tana of that name, caused a man who had committed +an offence to be whipped. The man complained to the Roman government +that Rab Shila was exercising judicial functions without the authority +of the government. The government sent an officer to investigate the +case, and the complainant was adjudged by the officer to have rendered +himself liable to the death penalty through the offence for which R. +Shila had punished him. The offender was thereupon handed over by +the officer to Rab Shila. But Rab Shila refused to consummate the +sentence, on the ground that since the exile from Palestine, the right +of capital punishment had not been vested in the Jews. Subsequently, +when the man was about to make a second complaint about Rab Shila, Rab +Shila who had been given the staff of judicial authority, killed the +man with his staff.[205] (iv) Another case in point is the following: +A man once declared before Rab (d. 247 C. E.), that he would persist +in a certain course despite Rab’s warning. Rab Kahana who was present +rose up and killed the contumacious man. Rab declared the killing to be +legally justified, but advised R. Kahana to flee to Palestine, since +the new Persian rulers were stricter in punishing bloodshed than the +Romans had been.[206] (v) Lynch law is recognized by the Mishna, when +it allows certain offenders to be struck down _flagrante delicto_.[207] +(vi) In connection with the remark that the one born under the planet +Mars will be a shedder of blood, Raba (4th century) said, ‘I was born +under Mars’; to which his pupil Abaye remarked, ‘Master, you also (as +exilarch) punish and put to death.’[208] (vii) Origen in his letter to +Africanus (240 C. E.) declares that the Jewish Patriarch in Palestine +exercised the power of imposing and carrying out capital sentences.[209] + +But the utmost that these cases prove is, that subsequent to 70 C. +E., a capital sentence carried out by a Jew, whether by lynch law or +after judicial trial, was an exception occasionally tolerated through +the generosity, the weakness or the corruption of the Roman or the +Persian authorities. The fact remains that subsequent to 70 C. E., the +Jewish law governing capital punishment fell into disuse. The Amoraim, +although they were the bearers of tradition, were not familiar in +practise with the actual judgment of capital cases and the imposition +of capital punishment. It is clear, therefore, that many of the dicta +of the later Rabbis concerning details of the law of capital punishment +are legal inferences rather than historical facts, and many of their +discussions are discussions of theory as to how the death penalty would +be carried out if the Rabbinic courts should again have jurisdiction. + +Similarly, much of the elaboration of criminal legal procedure at +which we have glanced is a theoretic development, dating from the +first centuries of the common era, which was never put to a practical +test. Many elements in it, such as the regulations governing witnesses +and their testimony, are elaborated theoretical developments of early +practise. In their fully developed form, these regulations would +have broken down as unworkable at the first touch of practise. Much +else is on the face of it dialectic, legal discussion conducted +on the principle of the meritorious nature of constant exposition +and interpretation of the law. This principle indeed is quoted in +connection with the decisions governing capital punishment.[210] As +an instance of this type of expository discussion may be mentioned +the decision[211] that strangling should be the punishment for one +who through craft or force gets another into his power, forces +him to serve, and then sells him into slavery. Such a ruling is +hardly a precedent based on practical experience. The discussion in +the Talmud[212] proves it to be only a theoretic case. Similarly, +the restrictions governing the treatment of the apostate city are +admittedly only theoretic, since the conditions required were so many +and so specialized that they could never occur together. It is frankly +confessed, that these conditions are only the result of study-house +discussion conducted for the merit of detailed and far-reaching +interpretation.[213] In exactly the same way, it is openly stated, that +a case of the “rebellious, gluttonous son”[214] never had occurred and +never would occur, the conditions required by the Rabbinic jurists +being practically impossible of occurrence together. The formulation +of these conditions was admittedly only the result of dialectic +development.[215] + +A passage was quoted above,[216] prescribing imprisonment in a _kipah_ +in certain cases. Where the Talmud asks what is meant by _kipah_, and +R. Jehudah explains that by _kipah_ is meant a den of about five and a +half feet in size,[217] it is clear that we are dealing with traditions +about legal matters which had not had practical application within the +memory of the Amoraim. When, further, we remember the discussions among +the Rabbis themselves, such as which death penalty should go with which +crime, or which would be the correct method of execution, or whether +the dead body has to be hanged only in certain cases or in others also, +and similar debates, it is clear that we often have to do with matters +of theoretic discussion about which there was no certain tradition. In +fact, in one passage, a legal decision concerning capital punishment is +called a decision that will be of practical application only when the +Messiah comes and the Jewish system of capital punishment will be once +more in use.[218] + +The result, therefore, to which our investigation leads along various +converging lines is, that originally the death penalty was carried +out through the decisions of the court approximately according to +the demands of the Bible. But at least as early as the beginning of +the Christian era, modifications had arisen, particularly among the +Pharisees, affecting the methods of inflicting the death penalty.[219] +These modifications apparently grew out of two chief causes, (a) the +desire to preserve the body from mutilation or disfigurement (possibly +in part owing to the Pharisaic belief in the resurrection which had not +been of weight with the Sadducees), and (b) the tendency to extend the +golden rule, so as to make the death penalty as humane as possible. But +the Rabbinic courts lost their jurisdiction in capital cases at the +fall of the Jewish state in 70 C. E. With this went the transference +of the problem of capital punishment from the realm of fact to that of +legal theory, and Rabbinic, juristic imagination became free to develop +the field of historical tradition, untrammeled by the restraints of +practise. The compensating spiritual inbreeding, which occurred when +external manifestations of Jewish national life were proscribed, +resulted, in this special legal field as in all other fields of Jewish +thought, in the over luxuriant development of the theory of Jewish +practise. In Amoraic times, the Rabbis no longer recognised with +certainty in many cases, whether a practise was old and traditional, or +whether it was a comparatively new development based only on theoretic +deduction. Even in early Tannaitic times, there was often uncertainty +as to what was known through tradition and what was known through +interpretation. This is brought out very clearly in the account of the +discussion between Hillel and the Bene Bethera on the question of the +sacrifice of the paschal lamb on Sabbath.[220] The Rabbis therefore +often projected legal conceptions into the past as actual facts.[221] + +It is impossible for us to pick out from the vast accumulation of +statements, rules and principles governing capital punishment according +to Amoraic ideas, exactly how much is historical tradition founded +on actual practise and how much only theoretic deduction. But from +the beginning of the Rabbinic period, we can clearly trace a growing +feeling of repugnance to capital punishment, which, along various +lines, succeeded in making capital punishment obsolete through legal +theory. Had the later Rabbis ever been granted the right of trying +capital cases, the theory which had been developed would have made +legal capital punishment impossible of application. Thus the Mishna +already could say,[222] that a Sanhedrin condemning to death once in +seven years was called a destroying or bloody Sanhedrin. Rabbi Eleazar +ben Azariah (first cent.) said that it was so called for imposing the +death penalty even once in seventy years.[223] + +It should be plainly recognised that capital punishment was never +formally abolished by the Rabbis. The penalty of death was demanded +by the laws contained in the sacred statute book, the Bible, and as +such it was accepted as needing no justification or defence. But it +was legislated out of all practical application in the development of +the law. The Rabbis of the Talmudic era abolished capital punishment +in the only way open to them,--in theory, as they would undoubtedly +have abolished it also in legal practise while retaining it as a dead +letter on the fundamental statute book, the Bible, had Jewish national +independence been regained in their day. + + +Post-Talmudic Development + +A few words should be added relative to the development of the idea of +capital punishment among the medieval Jews. + +In post-Talmudic times, the problem of capital punishment according to +Jewish law scarcely arose. Although the theory of it had been fully +worked out, there were no occasions for the application of the theory, +both because the Temple no longer stood and the Jewish courts had no +jurisdiction,[224] and because after the interruption of _Semicha_ +(ordination), no judges were regarded as competent.[225] This statement +is true, however, only with certain limitations. Although as a general +rule the Jewish courts in the diaspora had no jurisdiction in capital +cases, there were times and places in which the power of imposing the +death penalty was vested in the Jewish courts. Thus Asheri (c. 1300) +wrote: “In no country of which I have heard have Jews their own courts +for the trial of criminal cases except here in Spain. It was a source +of great astonishment to me when I came to Spain, that the Spanish Jews +should try criminal cases without the full and authorized Sanhedrin; +but I was informed that this was done in accordance with an order of +the government.”[226] Similarly, we find the Jews of Tudela asking the +viceroy of Navarre, “That he would be pleased to order and that we +practise the Jewish law as our ancestors have hitherto; that is, when a +Jew or Jewess commits a sin, on our magistrates applying to the bailiff +and notifying to him the sin committed, and the punishment it deserved +according to Jewish law, the bailiff shall execute it, and enforce the +sentence of our said magistrates, whether of condemnation or acquittal; +or of any demand from one Jew to another, as we have been accustomed, +not affecting the rights of our lord the king.” This right was granted +them.[227] + +Asheri himself unhesitatingly imposed the sentence of death on an +informer.[228] The _Moser_ (informer, _delator_), constituted so +poignant a danger to Jewry in exile, that the death penalty was not +infrequently consummated in his case. Jewish law gives the right to +kill the informer, on the principle of life for life. Since he is +seeking your life, you are justified in saving your own by taking +his.[229] The death sentence on the _Moser_ was pronounced by the +Jewish community and carried out by the non-Jewish authorities to +whom the convicted _delator_ was handed over. Maimonides (12th cent.) +declares that it regularly happens in the cities of the West that they +kill informers, or hand them over to the non-Jews to be killed or +dealt with according to their guilt.[230] + +Similarly, Asheri’s son, Jacob, in conjunction with a tribunal of +Rabbis in Toledo, condemned to death the informer Joseph ben Samuel +and handed him over to the royal executioner.[231] Joseph ibn Migas +of Lucena (d. 1141) caused an informer to be stoned on the eve of +the day of Atonement.[232] Others, who approved of the extermination +of informers, or who actually passed the sentence of death on them +and handed them over to the State authorities for execution, were +such leaders of Spanish and North African Jewry as Jonah Gerondi and +Solomon ben Adereth (c. 1280),[233] Isaac ben Shesheth (14th cent.), +Abraham Benveniste (1432), Simon ben Zemach Duran (1400), and his son +Solomon. In the particular case in which Jonah Gerondi and Solomon +ben Adereth acted as the judges (c. 1280), the family of the informer +tried in vain to stir up the non-Jewish authorities by declaring that +a judicial murder had been committed. They claimed that according to +Jewish law, the Jews had long foregone the right of imposing a capital +sentence, that the sentence had not been pronounced by a Sanhedrin +of twenty-three, etc. The authorities refused them a hearing. But +Solomon ben Adereth found it necessary to justify the action that had +been taken. He therefore submitted the case in all its details to the +Rabbis of North France. Only one answer has been preserved,--that of +Rabbi Meir of Rothenburg, who clearly and decidedly ranks himself on +the side of Ben Adereth.[234] But it will be seen that in all these +cases, the utmost power that was allowed to the Jewish tribunal was +that of pronouncing the sentence of death. The consummation of the +sentence was left to the State authorities. On Aug. 21, 1379, at the +request of a delegation of Jews, the royal farmer of taxes, Joseph +Pichon, was beheaded as an informer by the royal executioner. One +result of this affair was, that the Cortes issued the following decree, +depriving the Rabbis and the Jewish courts of the country of the right +of deciding criminal cases: “We ordain and command, that henceforward +it shall not be permitted for any Jews of our kingdoms, whether +rabbis, elders, chiefs or any other persons that now are or shall be +hereafter, to interfere to judge in any criminal cause to which death, +loss of limb or banishment is attached; but they may decide all civil +causes that appertain to them according to their religion. Criminal +cases shall be tried by one of the Alcaldes, chosen by the Jews in the +towns and places of their respective jurisdictions.... This is to be +understood for those criminal cases that have hitherto been tried by +the said Jews”....[235] Subsequently, owing to the influence of Abraham +Benveniste, this right of judging criminal cases was restored to the +Jewish courts in Spain. + +But this power could hardly be exercised outside of Spain and North +Africa, and in those lands it could be exercised only in favorable +periods. In Angevin England, “Criminal cases between Jews, except for +the greater felonies, as homicide, mayhem, etc., could be decided in +the Jewish courts according to Jewish law.”[236] In other lands also, +the Jewish courts were sometimes empowered to try lesser criminal +cases; but rarely, if ever, could they independently impose and carry +out the death sentence. At a later period, the Kahals in Eastern Europe +were granted autonomous jurisdiction in civil cases. But their greatest +power hardly exceeded the right given them in Lithuania by charter of +King Michael Wishnevetzki (1669-73), “to summon the criminals before +the Jewish courts for punishment and exclusion from the community when +necessary.” Rabbi Meir Sack emphatically protested against buying the +freedom of Jewish criminals from the authorities. “We should endeavor +to deprive criminals of opportunities to escape justice.” Similarly, +Meir Lublin declares that the death penalty for a murderer, decreed +by the law of the land, should be allowed to be consummated, if the +murderer were a Jew.[237] + +It may be stated broadly, that after the Roman period, the right of +pronouncing the death sentence was only rarely granted to the Jews, +while the right of inflicting capital punishment was practically +never vested in the Jewish community. Theoretically, Jewish legal +opinion gave to the leading authorities of the generation or of the +district, the right to act as a competent Sanhedrin of twenty-three +in judging criminal and capital cases, on urgent occasions of popular +wrongdoing.[238] But this right could so rarely be exercised that it +became virtually obsolete. + + +FOOTNOTES: + +[1] Ber. 8a, with reference to Ps. lxviii, 61. + +[2] Mishna Sanh. vii, 1. + +[3] Gen. Rab. lxv, 22. + +[4] This subject has been dealt with at length by A. Buechler, +_Monatsschrift f. Geschichte u. Wissenschaft des Judentums_, 1906, Vol. +L. + +[5] Sanh. vii, 4. + +[6] Compare Lev. xx, 10 with Deut. xxii, 24; and Num. xv, 35 with Exod. +xxxi, 14f, and xxxv, 2; Matt. xxv, 37; Luke xiii, 34. + +[7] Lev. xxiv, 14, 23; Num. xv, 35f; Deut. xvii, 5; xxi, 19ff; xxii, +24; Acts vii, 58. + +[8] Lev. xxiv, 16; Num. xiv, 10; Deut. xxi, 21; xxii, 21; I Sam. xxx, +6; I Kings xii, 18; xxi, 10, 13; II Chron. x, 18; xxiv, 21; Exod. xvii, +4; viii, 22; Josephus, _War_ I. xxvii, 6; _Antiq._ XVI, xi, 17; XVI. x, +5. + +[9] Deut. xvii, 7. + +[10] Overbeck, _Apostelgeschichte_, 114; J. Juster, _Les Juifs dans +l’Empire Romain_, II, 138, note 2; Schuerer, II, 262. + +[11] _Antiq._, XX, ix, 1; Schuerer (4th edit.), I, 581. + +[12] Sanh. ix, 6. + +[13] Compare Tosefta Kelim i, 6; Josephus, _War_, I, xxvii, 6. + +[14] J. Chag. II, 14, 78a; Sanh. 46a. + +[15] Tos. Sabb. 104b; Chajes in _Hagoren_, IV, 33-37; Zuckermandel, +_Gesam. Aufsaetze_, II, 193. + +[16] Sanh. 67a; Tos. Sanh. x, 11; J. Sanh. VII. 2, 25d top. + +[17] Kid. 80a; Git. 57a. + +[18] Buechler _loc. cit._, p. 691, doubts whether the method of +precipitation was ever legally used. + +[19] II Chr. xxv, 12. + +[20] II Macc. vi, 10; but Josephus, _Antiq._, XII. v, 4 says that they +were crucified and then strangled by having their children hung round +their neck. + +[21] Susanna 62, LXX text. + +[22] Luke iv, 29. + +[23] Lev. xvi, 22. + +[24] Students’ Annual, 1914, pp. 146, 147. I gladly take this +opportunity of acknowledging my indebtedness to Prof. Ginzberg who read +this essay in manuscript and gave me valuable suggestions on many +points. + +[25] Sanh. 45a bottom. + +[26] Lev. xx, 9, 11, 12, 13, 16, 27. + +[27] Sanh. 43a; Mark xv, 23; Matt. xxvii, 34; Prov. xxxi, 6. + +[28] Lev. xxi, 9; xx, 14; Cf. Gen. xxxviii, 24 (Tamar) and Josh. vii, +15, 25 (Achan). + +[29] Jud. xii, 14, 15; Josh. vii, 15, 24; Josephus, _War_, II. xxi, 3, +7. + +[30] Josephus, _Antiq._, IV, viii, 23, to Levit. xxi, 9. Compare Dan. +iii, 6. + +[31] Josephus, _Antiq._, XVII, vi, 4; _War_, I, xxxiii, 4. + +[32] _War_, II, xxi, 3. + +[33] Mishna Sanh. vii, 2; Tos. Sanh. ix, 11; J. Sanh. VII, 24b; B. +Sanh. 52b. + +[34] Sanh. 52b. + +[35] Jubilees xxx, 7; xx, 4; xli, 25, 26. For the Pharisaic view of the +application of this penalty, see Mishna Sanh. ix, 1. + +[36] Mishna Sanh. vii, 2. R. Jehudah while upholding this method +suggests a modification of the procedure. + +[37] Tos. Sanh. ix, 11. + +[38] Sanh. 52a. + +[39] Num. xvi, 35. + +[40] Lev. x, 2, 6. Sifra ed. Weiss ibid., 45c, 34; 46a, 41; Tosafoth +Sanh. 52a. + +[41] Sanh. 52a; Sifra 45c, 34. But contrast Josephus _Antiq._, III, +viii, 7, who says that their faces and breasts were burnt. + +[42] Baruch lxiii, 8; Susanna 62, LXX text, says that fire from heaven +burnt the false witnesses after they had been precipitated. + +[43] Lekach Tob to Noach IX, 23; Tanhuma Noach 21, p. 25b. + +[44] Sanh. 52b. + +[45] N. Bruell, _Beth Talmud_, 7ff, quoted by Buechler _l. c._ 558, +note 1. + +[46] Notice also the contradiction between Josephus’ account of the +burning of Nadab and Abihu and the Pharisaic tradition referred to +above, note 41. + +[47] E. g. II Kings x, 7. + +[48] Deut. xiii, 13-16. + +[49] Sanh. ix, 1; Mechilta to Exod. xxi, 12. + +[50] Scholion to Megillath Taanith 4. + +[51] Revel, _Jew. Quart. Rev._, New Series, III, 364, note 86. + +[52] Ritter, _Philo und die Halacha_, 18ff. + +[53] Matt. v, 38; see also xxvi, 52. + +[54] _Antiq._, IV, viii, 35. + +[55] Jubilees iv, 32. + +[56] Baba Kamma 84a. + +[57] Revel, _Jew. Quart. Rev._, New Series, III, 364-366. + +[58] Mechilta 83b to Ex. xxi, 20. + +[59] Sanh. vii, 3. + +[60] Similarly Baba Bathra 8b, Death by the sword is worse than a +natural death because it disfigures. + +[61] Lev. xix, 18. + +[62] Deut. xxi. + +[63] Sanh. 52b; Mechilta 83b to Exod. xxi, 20; J. Sanh. VII, 24b. Also +Genesis Rabba 44 beginning, and the legend of the _neck_ of Moses +becoming hard as marble before the sword of Pharaoh. J. Berachoth, ix, +1 (where the exact phrase used by the Mishna occurs); Exod. Rab. 1 to +Exod. ii, 15. + +[64] Matt. xiv, 10; Mark vi, 27; Luke ix, 9. Cf. the interpolation in +Josephus, _Antiq._, XVIII, v, 2. + +[65] Acts xii, 2. Cf. Rev. xx, 4 of the Christian martyrs. + +[66] II Sam. xvii, 23; Cf. I Kings xx, 31 “ropes upon our heads.” Tobit +ii, 3 (Strangulation). + +[67] Sanh. xi, 1. + +[68] Sanh. 52b bottom; Sifra 92a, 11. + +[69] Mishna Sanh. vii, 3. + +[70] Sanh. 52b; Sifra 92a, 11. + +[71] Tobit iii, 10. + +[72] Pes. 112a bottom; Cf. Semachoth II, 3. + +[73] Matt. xxvii, 5. But see the different story in Acts i, 18. + +[74] Mishna Sanh. vi, 4. + +[75] II Sam. iv, 12. + +[76] Gen. xl, 19. + +[77] II Sam. xxi, 12. + +[78] Josh. x, 26. But in Persia, the victim may have been hanged alive, +as the book of Esther seems to imply. + +[79] Mishna Sanh. vi, 4; Sanh. 46b; J. Chag. II, 78a. + +[80] Sanh. 46b. + +[81] Josephus, _War_, I, iv, 6. + +[82] Deut. xix, 16-21. Cf. also Deut. xiii, 12, xvii, 13, xxi, 21 of +the rebellious son, where the deterrent nature of the punishment is +again specifically mentioned. + +[83] Num. xxxv, 33; Deut. xix, 13. + +[84] Deut. xix, 11-13. + +[85] Exod. xxi, 14; Num. xxxv, 11, 12. + +[86] Exod. xxi, 13. + +[87] Ezek. xviii, 21-23; xxxiii, 14-16, 19. + +[88] Prov. xxiv, 11-13. + +[89] Matt. xv, 4; xxvi, 52; John xix, 10, 11; Acts xxv, 11; Romans +xiii, 1-14. + +[90] _Cont. Apion._, II, 31, “the punishment for most sinners is +death.” _Antiq._, IV, viii, 35. + +[91] Mishna Sanh. vi, 5. + +[92] Sifre to Deut. xix, 13. Cf. Deut. xiii, 9 of the seducer to +idolatry. + +[93] Mishna Sanh. viii, 5. + +[94] Prov. xi, 10; Mishna Sanh. iv, 5. + +[95] Mishna Sanh. x, 6 end, with reference to Josh. vii, 1 and vii, 26. + +[96] Genesis Rabba 44 to Gen. xv, 1. + +[97] Mishna Macc. i, 10; Macc. 7a, Tosafoth. + +[98] Mishna Sanh. viii, 5; Sanh. 72a; Sifre to Deut. xxi, 18-21. It +must be remembered that this case is purely theoretic. See text to +notes 214 and 215. + +[99] Ps. vii, 16f; Eccl. x, 8f; Prov. xxvi, 27; Ben Sira xxvii, 26. + +[100] Ps. xxviii, 4; Isa. iii, 10, 11; Job xxxiv, 11; Obad. 15; Lev. +xxiv, 19; Prov. xxiv, 29; Jer. 1, 29. + +[101] Aboth ii, 7; Sota i, 8; Num. Rab. xviii, 18; Sota 8a, 11a; Pes. +28a; Baba Kamma 92a. + +[102] Sanh. 100a, bottom; Mishna Sota i, 7. + +[103] Gen. ix, 6, which is not necessarily meant originally as a legal +principle, but which is used by the Rabbis as such, Sanh. 57b. Cf. +Matt. xxvi, 52; Sanh. 72b. + +[104] Mechilta de R. Simon, p. 126, with reference to Exod. xxi, 14. + +[105] Sanh. 52a with reference to Deut. xvii, 9; Maimonides Hilch. +Sanh. xiv, 11. + +[106] The Jewish courts outside of Palestine were considered as having +jurisdiction in capital cases only so long as the great Sanhedrin +continued to hold its sessions in the special hall of the Temple. +Mishna Macc. i, 10. + +[107] Mishna Sanh. xi, 4 in connection with Deut. xvii, 13. + +[108] Mishna Sanh. vi, 2; Sifre Zutta to Num. v, 6. + +[109] Tos. Sanh. ix, 5. + +[110] Mishna Sanh. vi, 2. + +[111] Their use of the phrase “worthy of death” applied to such mild +offenders as the scholar with stained clothing (Sabb. 104a), is +naturally to be understood as an emphatic hyperbole. + +[112] E. g. Mishna Sanh. iv, 5; Tos. Sanh. ix, 5; Macc. 5b. + +[113] Num. xxxv, 31, 32; Exod. xxi, 30, 32. + +[114] Josephus _Antiq._, XVI, i, 1. Compare I Sam. xxvi, 19. + +[115] Baba Bathra 8b, 10a. + +[116] Exod. xxii, 2; II Kings iv, 1; Josephus _Antiq._, XVI, i, 1. + +[117] Lev. xix, 20; Deut. xxii, 18; xxv, 3; II Cor. xi, 24; Luke xxiii, +15, 16, 22; Josephus _Antiq._, IV, viii, 21; XIII, x, 6; Macc. iii, 1 +seqq., 15. But see Maimonides Sanh. 19, where among the two hundred and +seven cases for which flagellation is the legal punishment, eighteen +cases are enumerated in which flagellation is imposed on the one +deserving death “from the hands of Heaven.” + +[118] Lev. xxiv, 12; Num. xv, 34; Acts iv, 3; xii, 4; xxii, 19; +Mechilta Mishpatim VI, p. 83a; Schechter, _Sectaries_, p. 12, ll. 2-6; +Sulzberger, _Jew. Quart. Rev._, 1914-15, V, 598-604. + +[119] Ezra vii, 26. + +[120] Sanh. ix, 5. + +[121] Cf. I Kings xxii, 27. + +[122] Either the witnesses were separated and not together, (Rab), +or the witnesses had not warned the murderer, (Samuel), or they had +tripped up in giving evidence, (Abimi). + +[123] J. Sanh. ix, 5. + +[124] Sanh. 27a bottom. + +[125] The blind is one of the four classes (poor, leper, blind, +childless), who are considered as dead. Nedarim 62b. Practically, the +one blinded is rendered harmless for the future. + +[126] Rashi ad loc. Kohut’s _Aruch_ בּה. See also Peah viii, 9 of the +unjust judge, “until his eyes grow dim,” with reference to Exod. xxiii, +8, Deut. xvi, 19. + +[127] Sifra 92a, 11; J. Sanh. VII, 24b; Sanh. 52b, bottom. + +[128] Josephus, _Antiq._, XIV, ix, 3; Mishna Sanh. ii, 2. + +[129] Usually translated “cut off from his people.” But the Hebrew term +_amav_ is plural and seems to mean ‘kinsfolk’ rather than ‘people.’ +Gen. xvii, 14; Exod. xii, 15, 19; xxx, 33, 38; Lev. vii, 20f, 25, 27; +xvii, 4, 9, 10, 14; xx, 6; xxii, 3; Num. xix, 13, 20, etc., etc. + +[130] Josh. vii, 24f. + +[131] I Kings xxi, 3; II Kings ix, 26. + +[132] Ezek. xxiii, 47; Cf. also II Kings xxv, 7; Num. xvi, 32. + +[133] E. g. Exod. xxxi, 14; Lev. xviii, 7, 8, 15, 20, 23, 29. + +[134] Yeb. 55a. + +[135] Moed Katan 28a; J. Bikk. II, 1, 64c. + +[136] Sanh. 64b, 90b to Num. xv, 31; Maimonides, Hilchoth Teshuba +8. According to Maimonides, “death by the hands of Heaven” differs +from _Kareth_, in that the former refers only to this life, the death +serving as an expiation, whereas _Kareth_ refers also to the future +life. But see Jebam. 2a, Tosafoth אשח on the meaning of _Kareth_. + +[137] Lev. xvii, 10; xx, 3, 5, 6. Cf. “and _I_ will destroy,” parallel +to “and shall be cut off” Lev. xxiii, 29, 30. + +[138] Lev. xx, 19. + +[139] Lev. xx, 20. + +[140] Lev. xx, 21. + +[141] _Kareth_, according to Rabbinical law, could be commuted to +scourging under certain conditions. Mishna Macc. iii, 15. + +[142] Sanh. 33b. bottom. + +[143] Baba Kamma 88a. + +[144] Mishna Sanh. iii, 3; Sanh. 24a, 24b, 25b. + +[145] Mishna Macc. i, 8; Macc. 6b, 7a; Mishna Sanh. iii, 4. + +[146] Baba Bathra 43a. + +[147] Mishna Sanh. iv, 5; Sanh. 37a. + +[148] Sanh. 29a; Susanna 52 seqq. + +[149] Sanh. 32b. + +[150] Mishna Sanh. v, 1. + +[151] Mishna Sanh. iii, 6; v, 2. + +[152] Mishna Sanh. v, 2; Sanh. 40a; Susanna ibid.; Mark xiv, 56, 59. + +[153] Mishna Sanh. _passim_; Sanh. 40a-41a; 80a; Mishna Macc. 1, 9; +Macc. 6b; Mechilta to Exod. xxi, 12; Sifra to Num. xv, 33 and to Deut. +xxii, 24. + +[154] Sanh. 8b; Macc. 16a. + +[155] Sanh. 8b. + +[156] Sanh. 40b. + +[157] Sanh. 41a; 8b; Macc. 6b; 9b. + +[158] E. g. a money penalty was allowed in compensation for +unintentional murder or constructive homicide, Exod. xxi, 29, 30. + +[159] Macc. 6b. + +[160] E. g. Mishna Sanh. vi, 4. + +[161] Sanh. 37b; Mechilta to Exod. xxiii, 7. + +[162] Deut. xvii, 6. + +[163] Sanh. 37b and Tosafoth; Maimonides, Hilchoth Sanh. xx, 1. + +[164] Mishna Sanh. ix, 2. + +[165] Sanh. 72a. + +[166] Except in pecuniary penalties, Baba Kamma 4b, Tosafoth. + +[167] Macc. 5b; Kerit. 3a top; Sanh. 54a bottom; 76a; Sifra to Lev. xx, +17. + +[168] Mishna Sanh. i, 4. + +[169] Mishna Sanh. iv, 2; Sanh. 36b. + +[170] Mishna Sanh. iv, 5. + +[171] Tos. Sanh. ix, 1. + +[172] Tos. Sanh. vii, 2. The duty of trying to find means of freeing +the accused is deduced from Num. xxxv, 25. + +[173] Except for an adulterer and an adulteress receiving the same +punishment for the same sin, J. Sanh. IV, 5. Tos. Sanh. vii, 2. + +[174] Mishna Sanh. iv, 1; v, 5. + +[175] Mishna Sanh. i, 6; iv, 1; v, 5. + +[176] Mishna Sanh. iv, 1; v, 5. + +[177] Tos. Sanh. vii, 2, ix, 1; Sanh. 32a, 34a. + +[178] Sanh. 17a. + +[179] Deut. xxxii, 35. + +[180] Instead of the required stoning, the culprit would fall from +a roof or be trampled by an animal. Instead of being burned by the +sentence of a court, he would fall into a fire or be bitten by a snake. +Instead of being executed by the court, he would fall into the power of +the government or of robbers. Instead of suffering the legal punishment +of strangulation, he would die from drowning or suffocation. Sanh. 37b. + +[181] Exod. xxiii, 7. Rashi. + +[182] Mishna Sanh. iv, 1. + +[183] Sanh. 42b, 43a. + +[184] Macc. 7a; Mishna Sanh. vi, 1 seqq.; Susanna 45; Moed Katan 14b. + +[185] Schuerer, (4th edit.), II, 261, note 79; and pp. 264, 265. + +[186] John xviii, 31. The trial of Paul described in Acts xviii, +12-16, reflecting conditions in Corinth, depicts the Jew as exercising +jurisdiction only in religious matters. + +[187] Sanh. 41a bottom; Sabb. 15a; Aboda Zara 8b; Rosh Hashana 31a +bottom; Mechilta de R. Simon p. 126; J. Sanh. I, 1, 18a; VII, 2, 24b; +Nachmanides to Numbers xxxv, 29. + +[188] Sota 8b; Keth. 30a bottom; Sanh. 37b. + +[189] _Antiq._, XIII, x, 6. + +[190] _Ibid._, XVIII, i, 4. + +[191] _War_, II, viii, 9. + +[192] _War_, VI, ii, 4. + +[193] Schuerer, II, 262. See J. Juster, _Les Juifs dans l’Empire +Romain_, II, 142, note 5. + +[194] Agrippa’s Letter to Caligula; Philo _Leg._, 39, quoted in Juster +_loc. cit._, p. 139, note 1. + +[195] Acts vi, 7 et seqq. + +[196] Acts xxi, 28f; (xxiv, 6; xxi, 29); xxvi, 21; (xxiii, 6, 29; xxiv, +5, 12ff; xxv, 7f. 27; xxii, 24, 30); xxiv, 6 (8); xxiii, 3, 9. + +[197] _Antiq._, XX, ix, 1. Jos. Lehmann, _Révue d. Etudes juives_, +XXXVII, 1898, pp. 13, 14. + +[198] See note 33. + +[199] Juster, _l. c._ 122-149, from a thorough examination of the +sources comes to the conclusion that the Sanhedrin preserved the right +of both pronouncing and of carrying out a capital sentence until the +year 70 C. E. + +[200] In Rom. 1, 6, c. 7, quoted by Juster, _ibid._, p. 150. + +[201] Didascalia Ch. xxvi, 6; xix, 2. Juster, _ibid._ + +[202] See note 33. + +[203] Sanh. 52b. + +[204] J. Meg. III, 2. 74a. Graetz (3rd edit.), IV, 284f. Bacher, _Agad. +d. pal. Amoraer_, II, 94f. For a different interpretation, see Perles, +_Monatsschrift_, XXXVII, 359-361. + +[205] Ber. 58a. + +[206] Baba Kamma 117a, 117b. + +[207] Sanh. viii, 7. According to tradition, the offender may be killed +_flagrante delicto_ in the three cases there mentioned, only if he has +received legal warning (see to notes 153-158), and if a lesser physical +injury would be insufficient to prevent the crime. Mishna Sanh. ix, 6 +mentions three other cases, in at least one of which the zeal of the +one who would strike down the offender is restrained by a number of +conditions. + +[208] Sabb. 156a. + +[209] Ep. ad. African. Par. 14. Juster _l. c._, p. 151, note 2. + +[210] Sanh. 51b. + +[211] Mishna Sanh. xi, 1. + +[212] Sanh. 86a. + +[213] Tos. Sanh. xiv, 1; Sanh. 71a. + +[214] See note 98. + +[215] Deut. xxi, 18-21; Mishna Sanh. viii, 1-5; Tos. Sanh. xi, 6; Sanh. +71a. + +[216] Note 120. + +[217] Sanh. 81b. + +[218] Sanh. 51b. + +[219] E. g. Judah ben Tabbai and Simon ben Shetach, Mishna Macc. i, 6; +Macc. 5b; Sanh. 37b. + +[220] J. Pes. VI, 1 beginning, 33a. + +[221] Sanh. 53a, top, makes the claim that the decisions concerning the +four methods of capital punishment are traditional. + +[222] Mishna Macc. i, 10. + +[223] It is not unlikely that both statements represent historical +theory rather than historical fact, a suggestion that seems to find +support from the words that follow, in which Rabbi Akiba and Rabbi +Tarfon claim that had they been members of a Sanhedrin, the death +sentence would never have been imposed. + +[224] See notes 104 and 105. + +[225] Tur, Hoshen Mishpat, I. 3. + +[226] Responsa XVII, 8. Cf. Teshuboth Ha-Rashba, II, 290. + +[227] Lindo, _The Jews of Spain_, p. 150f. + +[228] Responsa XVI, 1. + +[229] Ber. 62b, 72a. + +[230] Yad, Hilchoth Hobel u-Mazzik, viii, 2. + +[231] Judah ben Asher, Responsa Zichron Jehuda f. 55b, No. 75, quoted +by David Kaufman, _Jew. Quart. Rev._ 1896, VIII, pp. 219f. + +[232] Ibid. + +[233] Responsa of Rashba V, 290. + +[234] Kaufmann, _Ibid_, pp. 221-238 gives all the details of this +interesting leading case. + +[235] Lindo, _Jews of Spain_, 160-162. Graetz, _Geschichte_, VIII, 44. + +[236] Jacobs, _Jews of Angevin England_, pp. 331, 43, 49. + +[237] Responsa, 138, _Jew. Encycl._, Art. Lithuania. + +[238] Tur and Shulchan Aruch, Hoshen Mishpat ii. Cf. the exemplary +punishments referred to above, notes 14 and 80. + + + + + Transcriber note: + + + Inconsistent spelling has been standardised. + Punctuation errors have been corrected. + Italics are enclosed by underscores. + Smallcap text has been capitalised. +*** END OF THE PROJECT GUTENBERG EBOOK 77702 *** |