Part 2

Furthermore, the Rabbis approved of a fitting retribution. Biblical justice demands that the punishment correspond with the crime. He who digs a pit should fall into it.[99] The Psalmist prays that God may repay the wicked according to the works of their hands.[100] The Rabbis recognise this principle of retribution in kind in every phase of life.[101] The principle underlying the talio is that which they call “measure for measure.”[102] Bloodshed, according to this principle, could be expiated only by bloodshed.[103]

The Rabbis also saw in the death penalty an expiation of the sin that had been committed. This supreme expiation was religious in character, and was brought into connection with the Temple and its sacrificial worship. Thus it is stated that only so long as the altar stood,[104] or the priest officiated,[105] could the death penalty be carried out.[106] According to the opinion of R. Akiba,[107] a capital sentence on “a defiant elder” could not be consummated outside of Jerusalem, nor even in Jabneh by the great Sanhedrin, while the Temple still stood; but he should be brought to Jerusalem and put to death on one of the middle days of the next festival when the city and the Temple were thronged with worshippers. Those condemned to death were given the opportunity to confess their sins when within ten cubits of the place of execution, the confession opening for them the gates of the future world.[108] It is related of one condemned man that when bidden confess he prayed “May my death be an atonement for all my sins”....[109] If the condemned man was unable to confess fully, he was bidden say “May my death be an atonement for all my sins.”[110]

These four considerations, (a) the plain command of the written word of the Torah, (b) the recognition of the deterrent and preventive value of capital punishment, (c) the claims of just retribution and (d) the recognition of the expiatory character of the death penalty, leave it beyond doubt that the Rabbis approved of the theory of capital punishment. They accepted without question the teachings of the Torah, implying the justifiability of imposing the death penalty. At the same time, numberless passages testify to the sacredness in which they held human life,[111] and many passages prove that they had a vivid sense of the irrevocability of a consummated death sentence. To put a man to death wrongfully is as though one destroyed the whole world.[112]

Rabbinical Modifications

But it is no less clear that the Rabbis did not favor capital punishment in practise. It is true, as will be shown later, that after the fall of the Temple in 70 C. E., they no longer had the right of imposing the death penalty. But we possess their theory of what their practise would have been had they had the opportunity of exercising it, and this theory tends altogether in the direction of modifying capital punishment to its virtual abolition.

The problem with which the Rabbis grappled was how could the death penalty which was demanded by the Law be mitigated in the face of the explicit words of the Torah. Commutation of the death sentence by a fine or by wergild could not be considered where the Bible did not specify the option of a ransom (_Kofer_). The Torah expressly prohibits modifying into a fine the death penalty which was the due of the murderer.[113] The Bible furnishes no precedent for commuting the death penalty to one of deportation. Exile involved the banishment of the Jew from the full exercise of Judaism. Herod was condemned for selling law-breakers out of the kingdom. “For slavery to foreigners and such as did not live after the manner of the Jews, and necessity to do whatever such men should command, was an offence against our religion rather than a punishment to such as were found to have offended, such a punishment being avoided in our original laws,”--the Bible.[114] The cities of refuge no longer had asylum power. Exile was considered a more grievous punishment than death by the sword or by starvation and was regarded as harder even than death, itself the hardest of the ten hardest things created in the world.[115] Enslavement to Jews was specified by the Bible as a legitimate punishment only in certain cases.[116] Similarly, both the application and the severity of scourging were limited.[117]

Prisons in Jewish antiquity were used usually as a ward house in which the accused was detained until sentence could be pronounced.[118] But sometimes the prison seems to have been used also as a punitive institution.[119] In one instance, the principle of commuting a death penalty to a sentence of life imprisonment is recognised. The Mishna prescribes[120] that when a man has twice committed a crime for which excision is the penalty and he has received the lash twice, on his committing this crime a third time, he is imprisoned and fed on barley until he bursts. Or when one has committed a murder and there are no witnesses to condemn him, he is imprisoned and fed on frugal fare of bread and water.[121] In other words, when a murder has been committed and it is certain that the accused man was the murderer, but owing to legal technicalities,[122] it is impossible legally to prove his guilt; or if the circumstantial evidence is thoroughly convincing,[123] the Rabbis felt that it would be dangerous to society and against all principles of justice to allow such a known murderer to go free. In any of these cases, he should be imprisoned in a den of the height or length of a man and fed in such a manner as to bring about his early death. This seems to be the only passage in Rabbinical literature in which imprisonment is spoken of as a possible mitigation of the immediate death penalty.

From one passage[124] it would seem that in later Rabbinic times, (c. 350 C. E.), when the penalty of death for murder could no longer be imposed by the Jewish court, it was recommended that the death sentence be commuted into one of blinding the murderer. When it was reported that Bar Chama had committed a murder, the Exilarch bade Rab Abba (or Acha) bar Jacob investigate the case. If it proved that Bar Chama was guilty, his eyes should be put out.[125] But this passage stands alone, and does not allow us to draw any conclusion as to a general practise. Moreover the expression “to put out his eyes” may possibly be figurative, meaning imposing a fine or taking away authority.[126]

We see, therefore, that the necessity of adhering to the express commands of the Torah prohibited the Rabbis from commuting a death sentence into scourging, imprisonment, blinding or any other kind of mutilation, exile, enslavement, a fine or any other punishment. The exact words of the Torah had to be upheld.

Therefore, while rigidly maintaining the Biblical principle of capital punishment, the Rabbis availed themselves of their right to modify the _method_ of executing the death sentence. If they upheld the death penalty, there was nothing to prevent their mitigating the severity of its application in every way possible. We have already seen how stoning was modified in practise to precipitation, and burning modified to strangulation followed by a nominal burning. Our consideration showed that these changes in method apparently came about in order to secure the easiest and most humane methods of death, (since according to the golden rule even the condemned criminal is one’s brother), and in order to spare the body, so far as possible, all mutilation or disfigurement. The general principle governing the lightening of the methods of death was that wherever the Torah does not specify which method of death is to be employed, the easiest and most humane method is to be used.[127]

Legal Restrictions

But the most thoroughgoing modification of the system of capital punishment was not brought about through change in the methods of imposing the death penalty, but through surrounding the accused with so many legal safeguards that it became virtually impossible ever to impose a death sentence.

The law limited the right of trying capital cases to the high tribunal of twenty-three, not even the king having the right to put to death other than through the Sanhedrin.[128] According to Rabbinical tradition, one very large class of capital cases was taken out of the jurisdiction of any human court, namely those in which the Bible stipulates _Kareth_ or Excision as the punishment. This ruling at one stroke absolved the Rabbinical courts from the obligation of imposing the death sentence in a large number of cases.

In many passages in the Pentateuch it is stated that the one committing certain transgressions “will be cut off from his kinsfolk.”[129] Modern Biblical scholars understand the phrase as referring to the imposition of the death penalty by the court. The Karaites also understood _Kareth_ in this sense, through a comparison of Exod. xxxi, 14b with the parallel passages xxxi, 14a, 15 and Num. xv, 35. The one passage prescribes _Kareth_, the others prescribe death as the punishment for Sabbath profanation. Similarly _Kareth_ in Lev. xx, 3 is the equivalent of stoning, the punishment designated in the preceding verse for Moloch worship; and _Kareth_ for blasphemy in Num. xv, 30 is the equivalent of stoning mentioned as the punishment for the same crime in Lev. xxiv, 14. The fate of Achan,[130] of Naboth,[131] and of the adulteress,[132] would seem to show that the whole family of the convicted person could judicially be put to death. In some cases,[133] the death penalty is specified as well as the penalty of _Kareth_.

None the less, the Rabbis consistently understand _Kareth_ to be not a death penalty inflicted by man but a punishment left in the hands of Heaven. Thus the Rabbis interpret _Kareth_ specifically as dying childless,[134] or as dying at 50 years, or, according to Raba, between 50 and 60 years, before completing the otherwise destined span,[135] or as the cutting off of the soul in the future life.[136] For this interpretation of _Kareth_ as a punishment by Heaven would speak the personal pronoun in the phrase, “_I_ will cut off,” the active form sometimes used.[137] For this would also speak the passages wherein the death penalty is threatened as well as _Kareth_, usually adduced as favoring the other interpretation of _Kareth_, if we understand them, as we well may, as threatening an alternative, _either_ the death penalty by the court _or Kareth_ by God. That this may be the meaning is clear from a careful reading of Lev. x, 1-5, wherein the Moloch worshipper is threatened with death by stoning at the hands of the people, or if the people do not so punish him, then God will cut him off. Such phrases as “they shall bear their sin,”[138] or “they shall bear their sin and shall die childless,”[139] or “they shall die childless,”[140] would also be most naturally understood as taking the right of punishment away from the human court and leaving it to Heaven. It has been suggested that the Niqtal form, usually translated as passive “and shall be cut off,” should be understood in a reflexive sense, “(that soul) cuts itself off.” But this explanation seems unlikely in face of the occurrence of the active forms “I will cut off” or “and I will destroy that soul from the midst of its people.”[137] Whatever be the preferable explanation of _Kareth_ in each passage in which the term occurs, the interpretation consistently given to it by the Rabbis is highly significant. Their tendency away from capital punishment is clearly seen in their leaving to the heavenly tribunal the punishment in all cases where _Kareth_ is prescribed in the Bible.[141]

The other restrictions in court procedure are too well known to need setting forth here in detail. It is enough to mention some of the rules of evidence, particularly the minute safeguards with which the giving of testimony was surrounded. Torturing of witnesses to extract from them convicting evidence was entirely unknown. The aim of the court was to lead the witnesses into giving evidence favorable to the accused, not to coerce them into helping condemn him. According to R. Jose b. Jehudah, a witness could testify only in favor of the accused.[142] The two witnesses had to be free adult men,[143] sound in mind and body, of unquestioned integrity,[144] and free of all suspicion of personal relationship to the defendant[145] or interest in the case.[146] They were first solemnly warned and adjured as to the blood responsibility resting on them and their heirs after them.[147] They were then cross-examined separately,[148] very searchingly,[149] with the _haqira_ affecting place,[150] time, the warning, etc., and with the _bediqa_ going into the smaller details.[151] A slight contradiction or discrepancy in their evidence invalidated their testimony.[152] They had to prove the act, and, what was far more difficult, prove also the intention. In order to be able to prove deliberate and understanding premeditation, the witnesses must both have warned the accused before he committed the crime,[153] with a clear warning (_Hathraa_), including a definite reference to the kind of punishment and the measure of punishment which his act would involve.[154] The warning given by them had to have been so clearly understood, that the accused had replied that he would commit the crime none the less, thereby showing that he had fully understood the warning.[155] The act must have followed closely on their warning, or the warning by the witnesses was not considered adequate, on the ground that in the intervening time it may have escaped the culprit’s memory.[156] If there was a technical flaw in the giving of this warning by the witnesses, the accused was given the benefit of the doubt that there had not been _dolus_ but only _culpa_,[157] and where the crime was not premeditated, no death penalty could be imposed.[158]

Further, circumstantial or presumptive evidence was disallowed. The witnesses had to have seen each other when the act was committed,[159] and had to have seen the act itself, and not only what went before it or what followed it. For instance, even in early Rabbinic days, Simon ben Shetach (fl. 80 B. C. E.), who undoubtedly believed in and imposed the death sentence during his lifetime,[160] did not consider the strongest circumstantial evidence as evidence. It is related[161] that he once saw one man pursuing another. He followed them and found the pursued man murdered and the pursuer holding a sword dripping with blood. Simon said to the murderer: ‘Either you or I killed this man. But what can I do? Your blood guilt is not delivered into my hands; for the Torah says[162] that you can be condemned only by the actual testimony of two or more witnesses. May God who knows the inward thoughts requite the one who committed this murder.’[163]

In these and in similar ways, tradition developed the rules contained in the Torah, that two witnesses were needed and that the witnesses themselves had to carry out the death sentence. As the number of necessary conditions increased, it became virtually impossible in a capital case to obtain unassailable testimony adequate for a condemnation.

Many other legal refinements made it still more certain that no one would ever be legally condemned to death. For example, murder was not punishable by death, as we have seen, if it could be proved to have been not fully premeditated or intentional. Thus, if the murderer had meant to kill one man and had killed another; or had he meant to wound him on the thigh and instead had struck him on the heart and killed him, capital punishment could not be meted out, since the criminal intent to kill was not present.[164] Again, if the murderer were weak-minded, or intoxicated, or a deaf-mute, or a minor, or acting under compulsion or acting in self defence,[165] etc., he could not be condemned to death. Or again, if the man murdered had been fatally ill or for any other reason would not have lived had he not been murdered, the guilty man was not considered liable to the death penalty. And even if the murderer was suffering from an illness that in the ordinary course would shortly kill him, the court would not anticipate God’s decree by carrying out the death penalty.

But over and above these thick protecting hedges which made it virtually impossible to obtain a death sentence, there were many other considerations which further removed the possibility of executing a capital sentence. Thus there was a thoroughgoing rule that no punishment affecting the personality of a man[166] might be imposed on a deduction a fortiori.[167] Unless there was explicit Biblical warrant for the death penalty, it was prohibited to deduce this penalty by rules of interpretation, a principle in itself that worked consistently towards moderating the severity of the written law.

Moreover, just as the power of the witnesses was minimized and the rights and privileges of the defendant were magnified, so also the rights and privileges of the judges were hemmed in and restrained in every way. Only a high court of twenty-three could try capital cases.[168] The judges all had to be picked men of high standing, character and attainments.[169] They were impressed with the words of their own warning to the witnesses, that he who causes a soul to be put to death unjustly is as though he had destroyed the whole world.[170] When engaged on a capital trial, they were put under severe discipline.[171] They took the place both of the counsel for the defendant and of the jury.[172] Two death penalties could not be pronounced on one day.[173] For final condemnation, a second ballot had to be taken on the following day.[174] If twelve of the twenty-three judges were in favor of acquittal against the other eleven, the defendant was freed by the majority of one. But if twelve held him guilty and eleven held him innocent, the defendant could not be condemned by the majority of one. A majority of at least two was necessary for a condemnation.[175] A judge was not permitted to change his mind and declare his decision for a condemnation when once he had voted for an acquittal.[176] Unless each judge could give an individual reason for his opinion his vote was not counted.[177] According to the striking opinion of Rab Kahana, if the judges were unanimously in favor of _conviction_, the accused should be freed.[178] In general, it was held to be better that the guilty should escape punishment than that one innocent man be put to death. The judges had the less hesitancy in inclining to mercy, because of the belief that God would not allow the guilty to remain unrequited.[179] In the story of circumstantial evidence quoted above, Simon ben Shetach left the punishment of the murderer to God. When the Jewish courts no longer had jurisdiction, it was felt that God would fittingly punish those who had rendered themselves legally liable to the death penalty.[180] The Mechilta, elaborating the Biblical words “For I, God, will not let the guilty go free,”[181] says, that if one who is guilty has been discharged by the court as not guilty, he is not to be taken back for a retrial. God has instruments and means enough to bring upon him the punishment that he has incurred.

After an acquittal there could be no appeal; but after a conviction an appeal could be lodged at any time.[182] If one ultimately was condemned, he was given every facility to escape his fate through the publicity of a herald’s proclamation,[183] through the assiduous attempt to elicit new favorable evidence even during the procession to the place of execution,[184] etc.

Examples of legal safeguards could readily be multiplied. But it is sufficient for our present purpose to sum up these details by saying that the publicity of the trial, the confrontation of the defendant and the plaintiff, the absence of torture, the careful elimination of improper witnesses, the solemn warning to the witnesses, the searching examination of the witnesses, the remarkable requirements for a valid warning, the extraordinarily high standard as to what constituted evidence, the equally extraordinary number of loopholes allowed to the defendant, the limitations on the court, forbidding it to deduce a capital punishment if the Bible did not explicitly call for one, the immediate acquittal by any majority of the judges, the postponement of the final decision if a majority were in favor of death, the obligation on those who had voted against the death penalty of keeping their vote unchanged at the second ballot, together with the permission to change their opinion granted those who had voted in favor of the death penalty, the right of the judges after a condemnation to change their opinion any time before the execution, the constant public appeal for further evidence until the final execution, the prohibition of more than one capital sentence being pronounced in one day, and other innumerable elements of legal interpretation and procedure, all worked to make legal capital punishment impossible of practical application.

Practise and Theory