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.
2Mishna 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.
4This subject has been dealt with at length by A. Buechler,
Monatsschrift f. Geschichte u. Wissenschaft des Judentums,
1906, Vol. L.
6Sanh. vii, 4.
6Compare 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 ceremony8
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
7Lev. xxiv, 14, 23 ; Num. xv, 35f ; Deut. xvii, 5 ; xxi, 19ff ;
xxii, 24; Acts vii, 58.
8Lev. 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.
9Deut. xvii, 7.
10Overbeck, 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.
12Sanh. 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 Jesus15, 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
13Compare Tosefta Kelim i, 6; Josephus, War, I, xxvii, 6.
14J. Chag. II, 14, 78a ; Sanh. 46a.
15Tos. 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.
17Kid. 80a; Git. 57a.
18Buechler loc. cit., p. 691, doubts whether the method of
precipitation was ever legally used.
"II Chr. xxy, 12.
20II 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.
22Luke iv, 29.
23Lev. 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.
25Sanh. 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
26Lev. xx, 9, 11, 12, 13, 16, 27.
27Sanh. 43a; Mark xv, 23; Matt, xxvii, 34; Prov. xxxi, 6.
28Lev. xxi, 9; xx, 14; Cf. Gen. xxxviii, 24 (Tamar) and
Josh, vii, 15, 25 (Achan).
29Jud. xii, 14, 15; Josh, vii, 15, 24; Josephus, War, II. xxi,
3, 7.
30Josephus, Antiq., IV, viii, 23, to Levit. xxi, 9. Compare
Dan. iii, 6.
31Josephus, 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 pain37, and secondly, to avoid
marring the body.
**Wa,r, II, xxi, 3.
33Mishna Sanh. vii, 2; Tos. Sanh. ix, 11; J. Sanh. VII, 24b;
B. Sanh. 52b.
3*Sanh. 52b.
35Jubilees xxx, 7 ; xx, 4 ; xli, 25, 26. For the Pharisaic view
of the application of this penalty, see Mishna Sanh. ix, 1.
36Mishna 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 Talmud38, 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
38Sanh. 52a.
39Num. xvi, 35.
<°Lev. x, 2, 6. Sifra ed. Weiss ibid., 45c, 34; 46a, 41;
Tosafoth Sanh. 52a.
41Sanh. 52a; Sifra 45c, 34. But contrast Josephus Antiq.,
Ill, viii, 7, who says that their faces and breasts were burnt.
42Baruch Ixiii, 8 ; Susanna 62, LXX text, says that fire from
heaven burnt the false witnesses after they had been
precipitated.
*3Lekach 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
44Sanh 52b
45N. Bruell, Beth Talmud, 7ff, quoted by Buechler /. c. 558,
note 1.
46Notice also the contradiction between Josephus' account
of the burning of Nadab and Abihu and the Pharisaic tradition
referred to above, note 41.
*7E. 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
48Deut. xiii, 13-16.
49Sanh. ix, 1 ; Mechilta to Exod. xxi, 12.
50Scholion to Megillath Taanith 4.
51Revel, Jew. Quart. Rev., New Series, III, 364, note 86.
52Ritter, Philo und die Halacha, 18ff.
53Matt. v, 38; see also xxvi, 52.
**Antiq., IV, viii, 35.
65Jubilees iv, 32.
86Baba Kamma 84a.
"Revel, Jew. Quart. Rev., New Series, III, 364-366.
68Mechilta 83b to Ex. xxi, 20.
69Sanh. vii, 3.
60Similarly 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
61Lev. xix, 18.
62Deut. xxi.
63Sanh. 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.
64Matt. xiv, 10 ; Mark vi, 27 ; Luke ix, 9. Cf . the interpola-
tion in Josephus, Antiq., XVIII, v, 2.
65Acts 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 Mishna67 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
66II Sam. xvii, 23; Cf. I Kings xx, 31 "ropes upon our
heads." Tobit ii, 3 (Strangulation).
67Sanh. xi, 1.
«8Sanh. 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
69Mishna Sanh. vii, 3.
™Sanh. 52b; Sifra 92a, 11.
71Tobit iii, 10.
72Pes. 112a bottom; cf. Semachoth II, 3.
73Matt. xxvii, 5. But see the different story in Acts i, 18.
74Mishna 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 Talmud80 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
75II Sam. iv, 12.
76Gen. xl, 19.
77II Sam. xxi, 12.
78Josh. x, 26. But in Persia, the victim may have been
hanged alive, as the book of Esther seems to imply.
79Mishna Sanh. vi, 4; Sanh. 46b; J. Chag. II, 78a.
80Sanh. 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
81Josephus, 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
82Deut. 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.
83Num. xxxv, 33 ; Deut. xix, 13.
8*Deut. xix, 11-13.
85Exod. xxi, 14; Num. xxxv, 11, 12.
86Exod. xxi, 13.
87Ezek. xviii, 21-23; xxxiii, 14-16, 19.
88Prov. xxiv, 11-13.
Capital Punishment Among the Jews 17
to exact capital punishment.89 We have seen that
Philo, Josephus90 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
89Matt. 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.
92Sifre to Deut. xix, 13. Cf. Deut. xiii, 9 of the seducer to
idolatry.
93Mishna 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.
95Mishna Sanh. x, 6 end, with reference to Josh, vii, 1 and
vii, 26.
96Genesis Rabba 44 to Gen. xv, 1.
97Mishna 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
98Mishna 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.
100Ps. xxviii, 4; Isa. iii, 10, 11; Job xxxiv, 11; Obad. IS;
Lev. xxiv, 19; Prov. xxiv, 29; Jer. 1, 29.
101Aboth ii, 7; Sota i, 8; Num. Rab. xviii, 18; Sota 8a, lla;
Pes. 28a; Baba Kamma 92a.
102Sanh. lOOa, bottom ; Mishna Sota i, 7.
103Gen. 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.
104Mechilta de R. Simon, p. 126, with reference to Exod.
xxi, 14.
105Sanh. 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-
106The 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.
107Mishna Sanh. xi, 4 in connection with Deut. xvii, 13.
108Mishna Sanh. vi, 2; Sifre Zutta to Num. v, 6.
109Tos. Sanh. ix, 5.
110Mishna 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
1:11Their 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.
112E. g. Mishna Sanh. iv, 5 ; Tos. Sanh. ix, 5 ; Mace. 5b.
«3Num. 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-
114Josephus Antiq., XVI, i, 1. Compare I Sam. xxvi, 19.
115Baba Bathra 8b, lOa.
116Exod. xxii, 2; II Kings iv, 1; Josephus Antiq., XVI, i, 1.
117Lev. 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."
118Lev. 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 prescribes120 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 passage12* 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-
120Sanh. ix, 5.
121Cf. I Kings xxii, 27.
122Either 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).
123J. Sanh. ix, 5.
124Sanh. 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
i2BThe 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.
126Rashi 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.
128Josephus, 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
129Usually 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.
130Josh. vii, 24f.
131I Kings xxi, 3 ; II Kings ix, 26.
132Ezek. xxiii, 47; Cf. also II Kings xxv, 7; Num. xvi, 32.
133E. 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.
136Sanh. 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.
137Lev. xvii, 10; xx, 3, 5, 6. Cf. "and 7 will destroy,"
parallel to "and shall be cut off" Lev. xxiii, 29, 30.
138Lev. xx, 19.
139Lev. xx, 20.
l40Lev. 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 defendant145
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.
142Sanh. 33b. bottom.
143Baba Kamma 88a.
1**Mishna Sanh. iii, 3 ; Sanh. 24a, 24b, 25b.
146Mishna Mace, i, 8; Mace. 6b, 7a; Mishna Sanh. iii, 4.
146Baba 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
147Mishna Sanh. iv, 5 ; Sanh. 37a.
148Sanh. 29a; Susanna 52 seqq.
149Sanh. 32b.
150Mishna Sanh. v, 1.
151Mishna Sanh. iii, 6; v, 2.
152Mishna Sanh. v, 2 ; Sanh. 40a ; Susanna ibid. ; Mark xiv,
56, 59.
153Mishna 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.
155Sanh. 8b.
156Sanh. 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 related161 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 says162 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
157Sanh. 41a ; 8b ; Mace. 6b ; 9b.
158E. g. a money penalty was allowed in compensation for
unintentional murder or constructive homicide, Exod. xxi,
29, 30.
159Macc. 6b.
J«°E. g. Mishna Sanh. vi, 4.
161Sanh. 37b; Mechilta to Exod. xxiii, 7.
162Deut. xvii, 6.
163Sanh. 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
184Mishna Sanh. ix, 2.
185Sanh. 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 man166
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-
166Except in pecuniary penalties, Baba Kamma 4b,
Tosafoth.
167Macc. 5b ; Kerit. 3a top ; Sanh. 54a bottom ; 76a ; Sif ra to
Lev. xx, 17.
168Mishna Sanh. i, 4.
169Mishna Sanh. iv, 2 ; Sanh. 36b.
170Mishna Sanh. iv, 5.
171Tos. 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
173Except for an adulterer and an adulteress receiving the
same punishment for the same sin, J. Sanh. IV, 5. Tos. Sanh.
vii, 2.
174Mishna Sanh. iv, 1 ; v, 5.
175Mishna Sanh. i, 6; iv, 1 ; v, 5.
176Mishna Sanh. iv, 1 ; v, 5.
1T7Tos. Sanh. vii, 2, ix, 1 ; Sanh. 32a, 34a.
"8Sanh. 17a.
179Deut. 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
180Instead 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.
181Exod. xxiii, 7. Rashi.
182Mishna Sanh. iv, 1.
183 Sanh. 42b, 43a.
184Macc. 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 claims186
18BSchuerer, (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
186John 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.
187Sanh. 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.
188Sota 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-
where191 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 Stephen195 and the
different accounts of the trials of Paul before the
1S9Antiq., XIII, x, 6.
™»Ibid., XVIII, i, 4.
™War, II, viii, 9.
™2War, VI, ii, 4.
193Schuerer, 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 daughter198 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 Didascalia201 also remarks, that the
Jewish law of capital punishment is no longer in force.
194Agrippa's Letter to Caligula; Philo Leg., 39, quoted in
Juster loc. cit., p. 139, note 1.
195Acts vi, 7 et seqq.
196Acts 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.
107Antiq., XX, ix, 1. Jos. Lehmann, Revue d. Etudes juives,
XXXVII, 1898, pp. 13, 14.
198See note 33.
199Juster, /. 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.
200In Rom. 1, 6, c. 7, quoted by Juster, ibid., p. 150.
201Didascalia 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
202See note 33.
203Sanh. 52b.
204J. 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
205Ber. 58a.
206Baba Kamma 117a, 117b.
207Sanh. 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
209Ep. 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 decision211 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 Talmud212 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-
210Sanh. 51b.
211Mishna Sanh. xi, 1.
212Sanh. 86a.
213Tos. Sanh. xiv, 1; Sanh. 71a.
214See note 98.
215Deut. xxi, 18-21 ; Mishna Sanh. viii, 1-5 ; Tos. Sanh. xi, 6 ;
Sanh. 71a.
216Note 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.
218Sanh. Sib.
219E. 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
220J. Pes. VI, 1 beginning, 33a.
221Sanh. 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.
222Mishna Mace, i, 10.
223It 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.
224See notes 104 and 105.
225Tur, 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.
227Lindo, The Jews of Spain, p. 150f.
228Responsa XVI. 1.
229Ber. 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
230Yad, Hilchoth Hobel u-Mazzik, viii, 2.
231Judah ben Asher, Responsa Zichron Jehuda f. 55b,
No. 75, quoted by David Kaufman, Jew. Quart. Rev. 1896,
VIII, pp. 219f.
233Responsa 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.
234Kaufmann, Ibid, pp. 221-238 gives all the details of this
interesting leading case.
285Lindo, 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.
237Responsa, 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.
238Tur and Shulchan Aruch, Hoshen Mishpat ii. Cf. the
exemplary punishments referred to above, notes 14 and 80.
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