path: root/77702-0.txt

*** 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 ***