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Full text of "Capital punishment among the Jews : a paper read before the New York Board of Jewish Ministers"

5 
075 




CAPITAL PUNISHMENT 
AMONG THE JEWS 



A PAPER READ BEFORE THE 
NEW YORK BOARD OF JEWISH MINISTERS 

BY 

REV. D. DE SOLA POOL, PH. D. 




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 prin- 
ciples, 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 



. 8a, with reference to Ps. Ixviii, 61. 
2 Mishna Sanh. vii, 1. 



2 Capital Punishment Among the Jews 

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 him- 
self 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 punish- 
ment 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. 6 

Stoning was apparently the usual method of inflict- 
ing the death penalty in Biblical times whenever 
burning was not specifically called for. 6 It was 



3 Gen. Rab. Ixv, 22. 

4 This subject has been dealt with at length by A. Buechler, 
Monatsschrift f. Geschichte u. Wissenschaft des Judentums, 
1906, Vol. L. 

6 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. 



Capital Punishment Among the Jews 3 

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 proto- 
martyr 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 



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 
I'Empire Romain, II, 138, note 2 ; Schuerer, II, 262. 

11 Antiq., XX, ix, 1; Schuerer (4th edit.), I, 581. 

12 Sanh. ix, 6. 



4 Capital Punishment Among the Jews 

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 



18 



sources. 

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 persecu- 
tions of Antiochus Epiphanes are said to have been 
killed by being hurled from the wall of the city. 20 The 



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 Hag or en, IV, 33-37; Zucker- 
mandel, Gesam. Aufsaetze, II, 193. 

"Sanh. 67a; Tos. Sanh. x, 11; J. Sanh. VII. 2, 2Sd top. 

17 Kid. 80a; Git. 57a. 

18 Buechler loc. cit., p. 691, doubts whether the method of 
precipitation was ever legally used. 

"II Chr. xxy, 12. 

20 II Mace, vi, 10; but Josephus, Antiq., XII. v, 4 says that 
they were crucified and then strangled by having their children 
hung round their neck. 



Capital Punishment Among the Jews 5 

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 recog- 
nised 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 lapida- 
tion 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 



21 Susanna 62, LXX text. 

22 Luke iv, 29. 

23 Lev. xvi, 22. 

"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 suggestion on many points. 

25 Sanh. 45a bottom. 



6 Capital Punishment Among the Jews 

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 com- 
panions 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 



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. 



Capital Punishment Among the Jews 7 

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 re- 
ported 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, repre- 
senting 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. 88 
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. 



**Wa,r, II, xxi, 3. 

33 Mishna Sanh. vii, 2; Tos. Sanh. ix, 11; J. Sanh. VII, 24b; 
B. Sanh. 52b. 

3 *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. 

"Tos. Sanh. ix, 11. 



8 Capital Punishment Among the Jews 

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. 89 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 Senna- 
cherib'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 



38 Sanh. 52a. 

39 Num. xvi, 35. 

<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., 
Ill, viii, 7, who says that their faces and breasts were burnt. 

42 Baruch Ixiii, 8 ; Susanna 62, LXX text, says that fire from 
heaven burnt the false witnesses after they had been 
precipitated. 

* 3 Lekach Tob to Noach IX, 23; Tanhuma Noach 21, p. 25b. 



Capital Punishment Among the Jews 9 

to an actual burning must have been a Sadducean 
court, 4 * 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 inter- 
preted 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 



44 Sanh 52b 

45 N. Bruell, Beth Talmud, 7ff, quoted by Buechler /. 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. 

* 7 E. g. II Kings x, 7. 



10 Capital Punishment Among the Jews 

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 Boethu- 
sians, eo the Samaritans, 61 Philo, 52 Jesus, 53 Josephus, 54 
the Book of Jubilees, 65 Eliezer ben Hyrcanus, 
(1st cent. C. E.), 68 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 



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. 
**Antiq., IV, viii, 35. 
65 Jubilees iv, 32. 
86 Baba Kamma 84a. 

"Revel, Jew. Quart. Rev., New Series, III, 364-366. 
68 Mechilta 83b to Ex. xxi, 20. 
69 Sanh. vii, 3. 

60 Similarly Baba Bathra 8b, Death by the sword is worse 
than a natural death because it disfigures. 



Capital Punishment Among the Jews 11 

placed on a block and chopped off at the neck with an 
ax. The Rabbis protested that this method of be- 
heading 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. 68 
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 be- 
heading, 84 and Agrippa I. caused James the apostle, 
the brother of John, to be killed by the sword. 68 But 



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 interpola- 
tion in Josephus, Antiq., XVIII, v, 2. 

65 Acts xii, 2. Cf. Rev. xx, 4 of the Christian martyrs. 



12 Capital Punishment Among the Jews 

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 punish- 
ment 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, strangula- 
tion 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 



66 II Sam. xvii, 23; Cf. I Kings xx, 31 "ropes upon our 
heads." Tobit ii, 3 (Strangulation). 
67 Sanh. xi, 1. 
8 Sanh. 52b bottom; Sifra 92a, 11. 



Capital Punishment Among the Jews 13 

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 in- 
ducing 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 judg- 
ment. 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 



69 Mishna Sanh. vii, 3. 

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. 



14 Capital Punishment Among the Jews 

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 idolater 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 



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. 



Capital Punishment Among the Jews 15 

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 prin- 
ciple 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 



81 Josephus, War, I, iv, 6. 



16 Capital Punishment Among the Jews 

"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 punish- 
ment 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 tem- 
pered 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 



82 Deut. xix, 16-21. Cf. also Deut. xiii, 12, xvii, 13, xxi, 21 of 
the rebellious son, where the deterrent nature of the punish- 
ment is again specifically mentioned. 

83 Num. xxxv, 33 ; Deut. xix, 13. 

8 *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. 



Capital Punishment Among the Jews 17 

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 neces- 
sity 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 punish- 
ment, 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 



89 Matt. xy, 4; xxvi, 52; John xix, 10, 11; Acts xxv, 11; 
Romans xiii, 1-14. 

s 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. 



18 Capital Punishment Among the Jews 

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 char- 
acter 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 pre- 



9 *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 Mace, i, 10; Marc. 7a, Tosafoth. 



Capital Punishment Among the Jews 19 

ventive measure. 98 Although we immediately see the 
danger lurking in such a principle of preventive pun- 
ishment, 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 punish- 
ment correspond with the crime. He who digs a pit 
should fall into it." 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. 108 

The Rabbis also saw in the death penalty an expia- 
tion 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 



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. 

"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. IS; 
Lev. xxiv, 19; Prov. xxiv, 29; Jer. 1, 29. 

101 Aboth ii, 7; Sota i, 8; Num. Rab. xviii, 18; Sota 8a, lla; 
Pes. 28a; Baba Kamma 92a. 

102 Sanh. lOOa, 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. xyii, 9; Maimonides 
Hilch. Sanh. xiv, 11. 



20 Capital Punishment Among the Jews 

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 sacred- 



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 Mace, 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. 



Capital Punishment Among the Jews 21 

ness 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 pun- 
ishment 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 



1:11 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 ; Mace. 5b. 

3 Num. xxxv, 31, 32; Exod. xxi, 30, 32. 



22 Capital Punishment Among the Jews 

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 com- 
mand, 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 com- 
muting a death penalty to a sentence of life imprison- 



114 Josephus Antiq., XVI, i, 1. Compare I Sam. xxvi, 19. 

115 Baba Bathra 8b, lOa. 

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, IS, 16, 22; Josephus Antiq., IV, viii, 21; XIII, x, 6; 
Mace, 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, 
11. 2-6; Sulzberger, Jew. Quart. Rev., 1914-15, V, 598-604. 

Ezra vii, 26. 



Capital Punishment Among the Jews 23 

ment 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 12 * 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 mur- 



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. 



24 Capital Punishment Among the Jews 

derer. 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. More- 
over 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 scourg- 
ing, 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 

i 2B 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 ns . See also Peah viii, 9 
of the unjust judge, "until his eyes grow dim," with reference 
to Exod. xxiii, 8, Deut. xvi, 19. 



Capital Punishment Among the Jews 25 

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 im- 
possible 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 San- 
hedrin. 128 According to Rabbinical tradition, one very 
large class of capital cases was taken out of the juris- 
diction 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 



i2*Sifra 92a > 11; J- Sanh. VII, 24b; Sanh. S2b, bottom. 
128 Josephus, Antiq., XIV, ix, 3; Mishna Sanh. ii, 2. 



26 Capital Punishment Among the Jews 

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 child- 
less, 134 or as dying at 50 years, or, according to Raba, 
between 50 and 60 years, before completing the other- 
wise destined span, 135 or as the cutting off of the soul 



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. 



Capital Punishment Among the Jews 27 

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 inter- 
pretation 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 



. 55a. 

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 ne^X on the meaning of Kareth. 

137 Lev. xvii, 10; xx, 3, 5, 6. Cf. "and 7 will destroy," 
parallel to "and shall be cut off" Lev. xxiii, 29, 30. 

138 Lev. xx, 19. 

139 Lev. xx, 20. 

l40 Lev. xx, 21. 



28 Capital Punishment Among the Jews 



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 punish- 
ment in all cases where Kareth is prescribed in the 
Bible." 1 

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 wit- 
nesses 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 



, according to Rabbinical law, could be commuted 
to scourging under certain conditions. Mishna Mace, iii, 15. 
142 Sanh. 33b. bottom. 
143 Baba Kamma 88a. 

1 **Mishna Sanh. iii, 3 ; Sanh. 24a, 24b, 25b. 
146 Mishna Mace, i, 8; Mace. 6b, 7a; Mishna Sanh. iii, 4. 
146 Baba Bathra 43a. 



Capital Punishment Among the Jews 29 

resting on them and their heirs after them. 147 They 
were then cross-examined separately, 148 very search- 
ingly, 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 dis- 
crepancy in their evidence invalidated their testi- 
mony. 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 premedita- 
tion, 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 wit- 
nesses 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 



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 Mace. 
1, 9; Mace. 6b; Mechilta to Exod. xxi, 12; Sifra to Num. xv, 
33 and to Deut. xxii, 24. 

15 *Sanh. 8b; Mace. 16a. 

155 Sanh. 8b. 

156 Sanh. 40b. 



30 Capital Punishment Among the Jews 

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 1 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 circumstan- 
tial 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 con- 
demned 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 



157 Sanh. 41a ; 8b ; Mace. 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. 

J 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. 



Capital Punishment Among the Jews 31 

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, 185 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 imposible to obtain a death 
sentence, there were many other considerations which 



184 Mishna Sanh. ix, 2. 
185 Sanh. 72a. 



32 Capital Punishment Among the Jews 

further removed the possibility of executing a capital 
sentence. Thus there was a thorough-going 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 severities of the 
written law. 

Moreover, just as the power of the witnesses was 
minimized and the rights and privileges of the de- 
fendant 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 attain- 
ments. 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 de- 
fendant and of the jury. 172 Two death penalties could 
not be pronounced on one day. 173 For final condemna- 



166 Except in pecuniary penalties, Baba Kamma 4b, 
Tosafoth. 

167 Macc. 5b ; Kerit. 3a top ; Sanh. 54a bottom ; 76a ; Sif ra 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. 

17 *Tos. Sanh. vii, 2. The duty of trying to find means of 
freeing the accused is deduced from Num. xxxv, 25. 



Capital Punishment Among the Jews 33 

tion, 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 de- 
fendant 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 con- 
demnation when once he had voted for an acquittal. 1Ta 
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 



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. 

1T7 Tos. Sanh. vii, 2, ix, 1 ; Sanh. 32a, 34a. 

"8Sanh. 17a. 

179 Deut. xxxii, 35. 



34 Capital Punishment Among the Jews 

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 mul- 
tiplied. 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 



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. 



Capital Punishment Among the Jews 35 

extraordinarily high standard as to what constituted 
evidence, the equally extraordinary number of loop- 
holes 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 postpone- 
ment 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 iji 
one day, and other innumerable elements of legal inter- 
pretation 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 neces- 
sary to inquire when and why the practise of capital 
punishment ceased among the Jewish people. In Bib- 
lical times, and in post-Biblical times when the Saddu- 
cees controlled Jewish life, the old death penalties were 
carried out without essential modification. But under 
Roman rule, a change took place. Schiirer claims 186 



18B Schuerer, (4th edit.), II, 261, note 79; and pp. 264, 265. 



36 Capital Punishment Among the Jews 

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 your- 
selves 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, Schiirer 
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 



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. 



Capital Punishment Among the Jews 37 

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 com- 
petence in capital cases in Roman times until the de- 
struction 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 Else- 
where 191 he mentions that the Essenes punish blas- 
phemy 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 Schiirer'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 



1S9 Antiq., XIII, x, 6. 
Ibid., XVIII, i, 4. 
War, II, viii, 9. 
2 War, VI, ii, 4. 

193 Schuerer, II, 262. See J. Juster, Les Juifs dans I'Empire 
Remain, II, 142, note 5. 



38 Capital Punishment Among the Jews 

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 highpriest 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., 189 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. 



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. 

107 Antiq., XX, ix, 1. Jos. Lehmann, Revue d. Etudes juives, 
XXXVII, 1898, pp. 13, 14. 

198 See note 33. 

199 Juster, /. 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. 



Capital Punishment Among the Jews 39 

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 



202 See note 33. 

203 Sanh. 52b. 

204 J. Meg. HI, 2. 74a. Graetz (3rd edit.), IV, 284f. Bacher, 
Agad. d. pal. Amoraer, II, 94f. For a different interpretation, 
see Perles, Monatsschrift, XXXVII, 359-361. 



40 Capital Punishment Among the Jews 

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 de- 
clared 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. 20 " 1 (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 



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. 



Capital Punishment Among the Jews 41 

Patriarch in Palestine exercised the power of im- 
posing and carrying out capital sentences. 209 

But the utmost that these cases prove is, that sub- 
sequent 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 theoret- 
ical 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 



209 Ep. ad. African. Par. 14. Juster /. c., p. 151, note 2. 



42 Capital Punishment Among the Jews 

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 dis- 
cussion in the Talmud 212 proves it to be only a theo- 
retic 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 re- 
quired by the Rabbinic jurists being practically im- 
possible of occurrence together. The formulation of 
these conditions was admittedly only the result of 
dialectic development. 215 

A passage was quoted above, 216 prescribing imprison- 



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. 



Capital Punishment Among the Jews 43 

ment 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 discus- 
sions 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 pun- 
ishment 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, particu- 
larly among the Pharisees, affecting the methods of 
inflicting the death penalty. 219 These modifications 
apparently grew out of two chief causes, (a) the 



81b. 
218 Sanh. Sib. 

219 E. g. Judah ben Tabbai and Simon ben Shetach, Mishna 
.Mace, i, 6; Mace. 5b; Sanh. 37b. 



44 Capital Punishment Among the Jews 

desire to preserve the body from mutilation or dis- 
figurement (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 trans- 
ference 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 



220 J. Pes. VI, 1 beginning, 33a. 

221 Sanh. 53a, top, makes the claim that the decisions con- 



Capital Punishment Among the Jews 45 

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 de- 
duction. 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 Sanhedriri 
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 punish- 
ment 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 



cerning the four methods of capital punishment are traditional. 

222 Mishna Mace, 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 



46 Capital Punishment Among the Jews 

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 inde- 
pendence been regained in their day. 

Post-Talmudic Development 

A few words should be added relative to the de- 
velopment 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 



a Sanhedrin, the death sentence would never have been 
imposed. 

224 See notes 104 and 105. 

225 Tur, Hoshen Mishpat, I. 3. 



Capital Punishment Among the Jews 47 

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 magis- 
trates 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 



22 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. 



48 Capital Punishment Among the Jezvs 

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 execu- 
tion, 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 San- 
hedrin 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 



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. 



233 Responsa of Rashba V, 290. 



Capital Punishment Among the Jews 49 

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 Subse- 
quently, owing to the influence of Abraham Benveniste, 
this right of judging criminal cases was restored to the 
Jewish courts in Spain. 



234 Kaufmann, Ibid, pp. 221-238 gives all the details of this 
interesting leading case. 

285 Lindo, Jews of Spain, 160-162. Graetz, Geschichte, 
VIII, 44. 



50 Capital Punishment Among the Jews 

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." 238 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, 



236 Jacobs, Jews of Angevin England, pp. 331, 43, 49. 
237 Responsa, 138, Jew. Encycl., Art. Lithuania. 



Capital Punishment Among the Jews 51 

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. 



238 Tur and Shulchan Aruch, Hoshen Mishpat ii. Cf. the 
exemplary punishments referred to above, notes 14 and 80. 



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