Chapter II: Part 2

Similarly, much of the elaboration of criminal legal procedure at which we have glanced is a theoretic development, dating from the first centuries of the common era, which was never put to a practical test. Many elements in it, such as the regulations governing witnesses and their testimony, are elaborated theoretical developments of early practise. In their fully developed form, these regulations would have broken down as unworkable at the first touch of practise. Much else is on the face of it dialectic, legal discussion conducted on the principle of the meritorious nature of constant exposition and interpretation of the law. This principle indeed is quoted in connection with the decisions governing capital punishment.[210] As an instance of this type of expository discussion may be mentioned the decision[211] that strangling should be the punishment for one who through craft or force gets another into his power, forces him to serve, and then sells him into slavery. Such a ruling is hardly a precedent based on practical experience. The discussion in the Talmud[212] proves it to be only a theoretic case. Similarly, the restrictions governing the treatment of the apostate city are admittedly only theoretic, since the conditions required were so many and so specialized that they could never occur together. It is frankly confessed, that these conditions are only the result of study-house discussion conducted for the merit of detailed and far-reaching interpretation.[213] In exactly the same way, it is openly stated, that a case of the “rebellious, gluttonous son”[214] never had occurred and never would occur, the conditions required by the Rabbinic jurists being practically impossible of occurrence together. The formulation of these conditions was admittedly only the result of dialectic development.[215]

A passage was quoted above,[216] prescribing imprisonment in a _kipah_ in certain cases. Where the Talmud asks what is meant by _kipah_, and R. Jehudah explains that by _kipah_ is meant a den of about five and a half feet in size,[217] it is clear that we are dealing with traditions about legal matters which had not had practical application within the memory of the Amoraim. When, further, we remember the discussions among the Rabbis themselves, such as which death penalty should go with which crime, or which would be the correct method of execution, or whether the dead body has to be hanged only in certain cases or in others also, and similar debates, it is clear that we often have to do with matters of theoretic discussion about which there was no certain tradition. In fact, in one passage, a legal decision concerning capital punishment is called a decision that will be of practical application only when the Messiah comes and the Jewish system of capital punishment will be once more in use.[218]

The result, therefore, to which our investigation leads along various converging lines is, that originally the death penalty was carried out through the decisions of the court approximately according to the demands of the Bible. But at least as early as the beginning of the Christian era, modifications had arisen, particularly among the Pharisees, affecting the methods of inflicting the death penalty.[219] These modifications apparently grew out of two chief causes, (a) the desire to preserve the body from mutilation or disfigurement (possibly in part owing to the Pharisaic belief in the resurrection which had not been of weight with the Sadducees), and (b) the tendency to extend the golden rule, so as to make the death penalty as humane as possible. But the Rabbinic courts lost their jurisdiction in capital cases at the fall of the Jewish state in 70 C. E. With this went the transference of the problem of capital punishment from the realm of fact to that of legal theory, and Rabbinic, juristic imagination became free to develop the field of historical tradition, untrammeled by the restraints of practise. The compensating spiritual inbreeding, which occurred when external manifestations of Jewish national life were proscribed, resulted, in this special legal field as in all other fields of Jewish thought, in the over luxuriant development of the theory of Jewish practise. In Amoraic times, the Rabbis no longer recognised with certainty in many cases, whether a practise was old and traditional, or whether it was a comparatively new development based only on theoretic deduction. Even in early Tannaitic times, there was often uncertainty as to what was known through tradition and what was known through interpretation. This is brought out very clearly in the account of the discussion between Hillel and the Bene Bethera on the question of the sacrifice of the paschal lamb on Sabbath.[220] The Rabbis therefore often projected legal conceptions into the past as actual facts.[221]

It is impossible for us to pick out from the vast accumulation of statements, rules and principles governing capital punishment according to Amoraic ideas, exactly how much is historical tradition founded on actual practise and how much only theoretic deduction. But from the beginning of the Rabbinic period, we can clearly trace a growing feeling of repugnance to capital punishment, which, along various lines, succeeded in making capital punishment obsolete through legal theory. Had the later Rabbis ever been granted the right of trying capital cases, the theory which had been developed would have made legal capital punishment impossible of application. Thus the Mishna already could say,[222] that a Sanhedrin condemning to death once in seven years was called a destroying or bloody Sanhedrin. Rabbi Eleazar ben Azariah (first cent.) said that it was so called for imposing the death penalty even once in seventy years.[223]

It should be plainly recognised that capital punishment was never formally abolished by the Rabbis. The penalty of death was demanded by the laws contained in the sacred statute book, the Bible, and as such it was accepted as needing no justification or defence. But it was legislated out of all practical application in the development of the law. The Rabbis of the Talmudic era abolished capital punishment in the only way open to them,--in theory, as they would undoubtedly have abolished it also in legal practise while retaining it as a dead letter on the fundamental statute book, the Bible, had Jewish national independence been regained in their day.

Post-Talmudic Development

A few words should be added relative to the development of the idea of capital punishment among the medieval Jews.

In post-Talmudic times, the problem of capital punishment according to Jewish law scarcely arose. Although the theory of it had been fully worked out, there were no occasions for the application of the theory, both because the Temple no longer stood and the Jewish courts had no jurisdiction,[224] and because after the interruption of _Semicha_ (ordination), no judges were regarded as competent.[225] This statement is true, however, only with certain limitations. Although as a general rule the Jewish courts in the diaspora had no jurisdiction in capital cases, there were times and places in which the power of imposing the death penalty was vested in the Jewish courts. Thus Asheri (c. 1300) wrote: “In no country of which I have heard have Jews their own courts for the trial of criminal cases except here in Spain. It was a source of great astonishment to me when I came to Spain, that the Spanish Jews should try criminal cases without the full and authorized Sanhedrin; but I was informed that this was done in accordance with an order of the government.”[226] Similarly, we find the Jews of Tudela asking the viceroy of Navarre, “That he would be pleased to order and that we practise the Jewish law as our ancestors have hitherto; that is, when a Jew or Jewess commits a sin, on our magistrates applying to the bailiff and notifying to him the sin committed, and the punishment it deserved according to Jewish law, the bailiff shall execute it, and enforce the sentence of our said magistrates, whether of condemnation or acquittal; or of any demand from one Jew to another, as we have been accustomed, not affecting the rights of our lord the king.” This right was granted them.[227]

Asheri himself unhesitatingly imposed the sentence of death on an informer.[228] The _Moser_ (informer, _delator_), constituted so poignant a danger to Jewry in exile, that the death penalty was not infrequently consummated in his case. Jewish law gives the right to kill the informer, on the principle of life for life. Since he is seeking your life, you are justified in saving your own by taking his.[229] The death sentence on the _Moser_ was pronounced by the Jewish community and carried out by the non-Jewish authorities to whom the convicted _delator_ was handed over. Maimonides (12th cent.) declares that it regularly happens in the cities of the West that they kill informers, or hand them over to the non-Jews to be killed or dealt with according to their guilt.[230]

Similarly, Asheri’s son, Jacob, in conjunction with a tribunal of Rabbis in Toledo, condemned to death the informer Joseph ben Samuel and handed him over to the royal executioner.[231] Joseph ibn Migas of Lucena (d. 1141) caused an informer to be stoned on the eve of the day of Atonement.[232] Others, who approved of the extermination of informers, or who actually passed the sentence of death on them and handed them over to the State authorities for execution, were such leaders of Spanish and North African Jewry as Jonah Gerondi and Solomon ben Adereth (c. 1280),[233] Isaac ben Shesheth (14th cent.), Abraham Benveniste (1432), Simon ben Zemach Duran (1400), and his son Solomon. In the particular case in which Jonah Gerondi and Solomon ben Adereth acted as the judges (c. 1280), the family of the informer tried in vain to stir up the non-Jewish authorities by declaring that a judicial murder had been committed. They claimed that according to Jewish law, the Jews had long foregone the right of imposing a capital sentence, that the sentence had not been pronounced by a Sanhedrin of twenty-three, etc. The authorities refused them a hearing. But Solomon ben Adereth found it necessary to justify the action that had been taken. He therefore submitted the case in all its details to the Rabbis of North France. Only one answer has been preserved,--that of Rabbi Meir of Rothenburg, who clearly and decidedly ranks himself on the side of Ben Adereth.[234] But it will be seen that in all these cases, the utmost power that was allowed to the Jewish tribunal was that of pronouncing the sentence of death. The consummation of the sentence was left to the State authorities. On Aug. 21, 1379, at the request of a delegation of Jews, the royal farmer of taxes, Joseph Pichon, was beheaded as an informer by the royal executioner. One result of this affair was, that the Cortes issued the following decree, depriving the Rabbis and the Jewish courts of the country of the right of deciding criminal cases: “We ordain and command, that henceforward it shall not be permitted for any Jews of our kingdoms, whether rabbis, elders, chiefs or any other persons that now are or shall be hereafter, to interfere to judge in any criminal cause to which death, loss of limb or banishment is attached; but they may decide all civil causes that appertain to them according to their religion. Criminal cases shall be tried by one of the Alcaldes, chosen by the Jews in the towns and places of their respective jurisdictions.... This is to be understood for those criminal cases that have hitherto been tried by the said Jews”....[235] Subsequently, owing to the influence of Abraham Benveniste, this right of judging criminal cases was restored to the Jewish courts in Spain.

But this power could hardly be exercised outside of Spain and North Africa, and in those lands it could be exercised only in favorable periods. In Angevin England, “Criminal cases between Jews, except for the greater felonies, as homicide, mayhem, etc., could be decided in the Jewish courts according to Jewish law.”[236] In other lands also, the Jewish courts were sometimes empowered to try lesser criminal cases; but rarely, if ever, could they independently impose and carry out the death sentence. At a later period, the Kahals in Eastern Europe were granted autonomous jurisdiction in civil cases. But their greatest power hardly exceeded the right given them in Lithuania by charter of King Michael Wishnevetzki (1669-73), “to summon the criminals before the Jewish courts for punishment and exclusion from the community when necessary.” Rabbi Meir Sack emphatically protested against buying the freedom of Jewish criminals from the authorities. “We should endeavor to deprive criminals of opportunities to escape justice.” Similarly, Meir Lublin declares that the death penalty for a murderer, decreed by the law of the land, should be allowed to be consummated, if the murderer were a Jew.[237]

It may be stated broadly, that after the Roman period, the right of pronouncing the death sentence was only rarely granted to the Jews, while the right of inflicting capital punishment was practically never vested in the Jewish community. Theoretically, Jewish legal opinion gave to the leading authorities of the generation or of the district, the right to act as a competent Sanhedrin of twenty-three in judging criminal and capital cases, on urgent occasions of popular wrongdoing.[238] But this right could so rarely be exercised that it became virtually obsolete.

FOOTNOTES:

[1] Ber. 8a, with reference to Ps. lxviii, 61.

[2] Mishna Sanh. vii, 1.

[3] Gen. Rab. lxv, 22.

[4] This subject has been dealt with at length by A. Buechler, _Monatsschrift f. Geschichte u. Wissenschaft des Judentums_, 1906, Vol. L.

[5] Sanh. vii, 4.

[6] Compare Lev. xx, 10 with Deut. xxii, 24; and Num. xv, 35 with Exod. xxxi, 14f, and xxxv, 2; Matt. xxv, 37; Luke xiii, 34.

[7] Lev. xxiv, 14, 23; Num. xv, 35f; Deut. xvii, 5; xxi, 19ff; xxii, 24; Acts vii, 58.

[8] Lev. xxiv, 16; Num. xiv, 10; Deut. xxi, 21; xxii, 21; I Sam. xxx, 6; I Kings xii, 18; xxi, 10, 13; II Chron. x, 18; xxiv, 21; Exod. xvii, 4; viii, 22; Josephus, _War_ I. xxvii, 6; _Antiq._ XVI, xi, 17; XVI. x, 5.

[9] Deut. xvii, 7.

[10] Overbeck, _Apostelgeschichte_, 114; J. Juster, _Les Juifs dans l’Empire Romain_, II, 138, note 2; Schuerer, II, 262.

[11] _Antiq._, XX, ix, 1; Schuerer (4th edit.), I, 581.

[12] Sanh. ix, 6.

[13] Compare Tosefta Kelim i, 6; Josephus, _War_, I, xxvii, 6.

[14] J. Chag. II, 14, 78a; Sanh. 46a.

[15] Tos. Sabb. 104b; Chajes in _Hagoren_, IV, 33-37; Zuckermandel, _Gesam. Aufsaetze_, II, 193.

[16] Sanh. 67a; Tos. Sanh. x, 11; J. Sanh. VII. 2, 25d top.

[17] Kid. 80a; Git. 57a.

[18] Buechler _loc. cit._, p. 691, doubts whether the method of precipitation was ever legally used.

[19] II Chr. xxv, 12.

[20] II Macc. vi, 10; but Josephus, _Antiq._, XII. v, 4 says that they were crucified and then strangled by having their children hung round their neck.

[21] Susanna 62, LXX text.

[22] Luke iv, 29.

[23] Lev. xvi, 22.

[24] Students’ Annual, 1914, pp. 146, 147. I gladly take this opportunity of acknowledging my indebtedness to Prof. Ginzberg who read this essay in manuscript and gave me valuable suggestions on many points.

[25] Sanh. 45a bottom.

[26] Lev. xx, 9, 11, 12, 13, 16, 27.

[27] Sanh. 43a; Mark xv, 23; Matt. xxvii, 34; Prov. xxxi, 6.

[28] Lev. xxi, 9; xx, 14; Cf. Gen. xxxviii, 24 (Tamar) and Josh. vii, 15, 25 (Achan).

[29] Jud. xii, 14, 15; Josh. vii, 15, 24; Josephus, _War_, II. xxi, 3, 7.

[30] Josephus, _Antiq._, IV, viii, 23, to Levit. xxi, 9. Compare Dan. iii, 6.

[31] Josephus, _Antiq._, XVII, vi, 4; _War_, I, xxxiii, 4.

[32] _War_, II, xxi, 3.

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

[34] Sanh. 52b.

[35] Jubilees xxx, 7; xx, 4; xli, 25, 26. For the Pharisaic view of the application of this penalty, see Mishna Sanh. ix, 1.

[36] Mishna Sanh. vii, 2. R. Jehudah while upholding this method suggests a modification of the procedure.

[37] Tos. Sanh. ix, 11.

[38] Sanh. 52a.

[39] Num. xvi, 35.

[40] Lev. x, 2, 6. Sifra ed. Weiss ibid., 45c, 34; 46a, 41; Tosafoth Sanh. 52a.

[41] Sanh. 52a; Sifra 45c, 34. But contrast Josephus _Antiq._, III, viii, 7, who says that their faces and breasts were burnt.

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

[43] Lekach Tob to Noach IX, 23; Tanhuma Noach 21, p. 25b.

[44] Sanh. 52b.

[45] N. Bruell, _Beth Talmud_, 7ff, quoted by Buechler _l. c._ 558, note 1.

[46] Notice also the contradiction between Josephus’ account of the burning of Nadab and Abihu and the Pharisaic tradition referred to above, note 41.

[47] E. g. II Kings x, 7.

[48] Deut. xiii, 13-16.

[49] Sanh. ix, 1; Mechilta to Exod. xxi, 12.

[50] Scholion to Megillath Taanith 4.

[51] Revel, _Jew. Quart. Rev._, New Series, III, 364, note 86.

[52] Ritter, _Philo und die Halacha_, 18ff.

[53] Matt. v, 38; see also xxvi, 52.

[54] _Antiq._, IV, viii, 35.

[55] Jubilees iv, 32.

[56] Baba Kamma 84a.

[57] Revel, _Jew. Quart. Rev._, New Series, III, 364-366.

[58] Mechilta 83b to Ex. xxi, 20.

[59] Sanh. vii, 3.

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

[61] Lev. xix, 18.

[62] Deut. xxi.

[63] Sanh. 52b; Mechilta 83b to Exod. xxi, 20; J. Sanh. VII, 24b. Also Genesis Rabba 44 beginning, and the legend of the _neck_ of Moses becoming hard as marble before the sword of Pharaoh. J. Berachoth, ix, 1 (where the exact phrase used by the Mishna occurs); Exod. Rab. 1 to Exod. ii, 15.

[64] Matt. xiv, 10; Mark vi, 27; Luke ix, 9. Cf. the interpolation in Josephus, _Antiq._, XVIII, v, 2.

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

[66] II Sam. xvii, 23; Cf. I Kings xx, 31 “ropes upon our heads.” Tobit ii, 3 (Strangulation).

[67] Sanh. xi, 1.

[68] Sanh. 52b bottom; Sifra 92a, 11.

[69] Mishna Sanh. vii, 3.

[70] Sanh. 52b; Sifra 92a, 11.

[71] Tobit iii, 10.

[72] Pes. 112a bottom; Cf. Semachoth II, 3.

[73] Matt. xxvii, 5. But see the different story in Acts i, 18.

[74] Mishna Sanh. vi, 4.

[75] II Sam. iv, 12.

[76] Gen. xl, 19.

[77] II Sam. xxi, 12.

[78] Josh. x, 26. But in Persia, the victim may have been hanged alive, as the book of Esther seems to imply.

[79] Mishna Sanh. vi, 4; Sanh. 46b; J. Chag. II, 78a.

[80] Sanh. 46b.

[81] Josephus, _War_, I, iv, 6.

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

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

[84] Deut. xix, 11-13.

[85] Exod. xxi, 14; Num. xxxv, 11, 12.

[86] Exod. xxi, 13.

[87] Ezek. xviii, 21-23; xxxiii, 14-16, 19.

[88] Prov. xxiv, 11-13.

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

[90] _Cont. Apion._, II, 31, “the punishment for most sinners is death.” _Antiq._, IV, viii, 35.

[91] Mishna Sanh. vi, 5.

[92] Sifre to Deut. xix, 13. Cf. Deut. xiii, 9 of the seducer to idolatry.

[93] Mishna Sanh. viii, 5.

[94] Prov. xi, 10; Mishna Sanh. iv, 5.

[95] Mishna Sanh. x, 6 end, with reference to Josh. vii, 1 and vii, 26.

[96] Genesis Rabba 44 to Gen. xv, 1.

[97] Mishna Macc. i, 10; Macc. 7a, Tosafoth.

[98] Mishna Sanh. viii, 5; Sanh. 72a; Sifre to Deut. xxi, 18-21. It must be remembered that this case is purely theoretic. See text to notes 214 and 215.

[99] Ps. vii, 16f; Eccl. x, 8f; Prov. xxvi, 27; Ben Sira xxvii, 26.

[100] Ps. xxviii, 4; Isa. iii, 10, 11; Job xxxiv, 11; Obad. 15; Lev. xxiv, 19; Prov. xxiv, 29; Jer. 1, 29.

[101] Aboth ii, 7; Sota i, 8; Num. Rab. xviii, 18; Sota 8a, 11a; Pes. 28a; Baba Kamma 92a.

[102] Sanh. 100a, bottom; Mishna Sota i, 7.

[103] Gen. ix, 6, which is not necessarily meant originally as a legal principle, but which is used by the Rabbis as such, Sanh. 57b. Cf. Matt. xxvi, 52; Sanh. 72b.

[104] Mechilta de R. Simon, p. 126, with reference to Exod. xxi, 14.

[105] Sanh. 52a with reference to Deut. xvii, 9; Maimonides Hilch. Sanh. xiv, 11.

[106] The Jewish courts outside of Palestine were considered as having jurisdiction in capital cases only so long as the great Sanhedrin continued to hold its sessions in the special hall of the Temple. Mishna Macc. i, 10.

[107] Mishna Sanh. xi, 4 in connection with Deut. xvii, 13.

[108] Mishna Sanh. vi, 2; Sifre Zutta to Num. v, 6.

[109] Tos. Sanh. ix, 5.

[110] Mishna Sanh. vi, 2.

[111] Their use of the phrase “worthy of death” applied to such mild offenders as the scholar with stained clothing (Sabb. 104a), is naturally to be understood as an emphatic hyperbole.

[112] E. g. Mishna Sanh. iv, 5; Tos. Sanh. ix, 5; Macc. 5b.

[113] Num. xxxv, 31, 32; Exod. xxi, 30, 32.

[114] Josephus _Antiq._, XVI, i, 1. Compare I Sam. xxvi, 19.

[115] Baba Bathra 8b, 10a.

[116] Exod. xxii, 2; II Kings iv, 1; Josephus _Antiq._, XVI, i, 1.

[117] Lev. xix, 20; Deut. xxii, 18; xxv, 3; II Cor. xi, 24; Luke xxiii, 15, 16, 22; Josephus _Antiq._, IV, viii, 21; XIII, x, 6; Macc. iii, 1 seqq., 15. But see Maimonides Sanh. 19, where among the two hundred and seven cases for which flagellation is the legal punishment, eighteen cases are enumerated in which flagellation is imposed on the one deserving death “from the hands of Heaven.”

[118] Lev. xxiv, 12; Num. xv, 34; Acts iv, 3; xii, 4; xxii, 19; Mechilta Mishpatim VI, p. 83a; Schechter, _Sectaries_, p. 12, ll. 2-6; Sulzberger, _Jew. Quart. Rev._, 1914-15, V, 598-604.

[119] Ezra vii, 26.

[120] Sanh. ix, 5.

[121] Cf. I Kings xxii, 27.

[122] Either the witnesses were separated and not together, (Rab), or the witnesses had not warned the murderer, (Samuel), or they had tripped up in giving evidence, (Abimi).

[123] J. Sanh. ix, 5.

[124] Sanh. 27a bottom.

[125] The blind is one of the four classes (poor, leper, blind, childless), who are considered as dead. Nedarim 62b. Practically, the one blinded is rendered harmless for the future.

[126] Rashi ad loc. Kohut’s _Aruch_ בּה. See also Peah viii, 9 of the unjust judge, “until his eyes grow dim,” with reference to Exod. xxiii, 8, Deut. xvi, 19.

[127] Sifra 92a, 11; J. Sanh. VII, 24b; Sanh. 52b, bottom.

[128] Josephus, _Antiq._, XIV, ix, 3; Mishna Sanh. ii, 2.

[129] Usually translated “cut off from his people.” But the Hebrew term _amav_ is plural and seems to mean ‘kinsfolk’ rather than ‘people.’ Gen. xvii, 14; Exod. xii, 15, 19; xxx, 33, 38; Lev. vii, 20f, 25, 27; xvii, 4, 9, 10, 14; xx, 6; xxii, 3; Num. xix, 13, 20, etc., etc.

[130] Josh. vii, 24f.

[131] I Kings xxi, 3; II Kings ix, 26.

[132] Ezek. xxiii, 47; Cf. also II Kings xxv, 7; Num. xvi, 32.

[133] E. g. Exod. xxxi, 14; Lev. xviii, 7, 8, 15, 20, 23, 29.

[134] Yeb. 55a.

[135] Moed Katan 28a; J. Bikk. II, 1, 64c.

[136] Sanh. 64b, 90b to Num. xv, 31; Maimonides, Hilchoth Teshuba 8. According to Maimonides, “death by the hands of Heaven” differs from _Kareth_, in that the former refers only to this life, the death serving as an expiation, whereas _Kareth_ refers also to the future life. But see Jebam. 2a, Tosafoth אשח on the meaning of _Kareth_.

[137] Lev. xvii, 10; xx, 3, 5, 6. Cf. “and _I_ will destroy,” parallel to “and shall be cut off” Lev. xxiii, 29, 30.

[138] Lev. xx, 19.

[139] Lev. xx, 20.

[140] Lev. xx, 21.

[141] _Kareth_, according to Rabbinical law, could be commuted to scourging under certain conditions. Mishna Macc. iii, 15.

[142] Sanh. 33b. bottom.

[143] Baba Kamma 88a.

[144] Mishna Sanh. iii, 3; Sanh. 24a, 24b, 25b.

[145] Mishna Macc. i, 8; Macc. 6b, 7a; Mishna Sanh. iii, 4.

[146] Baba Bathra 43a.

[147] Mishna Sanh. iv, 5; Sanh. 37a.

[148] Sanh. 29a; Susanna 52 seqq.

[149] Sanh. 32b.

[150] Mishna Sanh. v, 1.

[151] Mishna Sanh. iii, 6; v, 2.

[152] Mishna Sanh. v, 2; Sanh. 40a; Susanna ibid.; Mark xiv, 56, 59.

[153] Mishna Sanh. _passim_; Sanh. 40a-41a; 80a; Mishna Macc. 1, 9; Macc. 6b; Mechilta to Exod. xxi, 12; Sifra to Num. xv, 33 and to Deut. xxii, 24.

[154] Sanh. 8b; Macc. 16a.

[155] Sanh. 8b.

[156] Sanh. 40b.

[157] Sanh. 41a; 8b; Macc. 6b; 9b.

[158] E. g. a money penalty was allowed in compensation for unintentional murder or constructive homicide, Exod. xxi, 29, 30.

[159] Macc. 6b.

[160] E. g. Mishna Sanh. vi, 4.

[161] Sanh. 37b; Mechilta to Exod. xxiii, 7.

[162] Deut. xvii, 6.

[163] Sanh. 37b and Tosafoth; Maimonides, Hilchoth Sanh. xx, 1.

[164] Mishna Sanh. ix, 2.

[165] Sanh. 72a.

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

[167] Macc. 5b; Kerit. 3a top; Sanh. 54a bottom; 76a; Sifra to Lev. xx, 17.

[168] Mishna Sanh. i, 4.

[169] Mishna Sanh. iv, 2; Sanh. 36b.

[170] Mishna Sanh. iv, 5.

[171] Tos. Sanh. ix, 1.

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

[173] Except for an adulterer and an adulteress receiving the same punishment for the same sin, J. Sanh. IV, 5. Tos. Sanh. vii, 2.

[174] Mishna Sanh. iv, 1; v, 5.

[175] Mishna Sanh. i, 6; iv, 1; v, 5.

[176] Mishna Sanh. iv, 1; v, 5.

[177] Tos. Sanh. vii, 2, ix, 1; Sanh. 32a, 34a.

[178] Sanh. 17a.

[179] Deut. xxxii, 35.

[180] Instead of the required stoning, the culprit would fall from a roof or be trampled by an animal. Instead of being burned by the sentence of a court, he would fall into a fire or be bitten by a snake. Instead of being executed by the court, he would fall into the power of the government or of robbers. Instead of suffering the legal punishment of strangulation, he would die from drowning or suffocation. Sanh. 37b.

[181] Exod. xxiii, 7. Rashi.

[182] Mishna Sanh. iv, 1.

[183] Sanh. 42b, 43a.

[184] Macc. 7a; Mishna Sanh. vi, 1 seqq.; Susanna 45; Moed Katan 14b.

[185] Schuerer, (4th edit.), II, 261, note 79; and pp. 264, 265.

[186] John xviii, 31. The trial of Paul described in Acts xviii, 12-16, reflecting conditions in Corinth, depicts the Jew as exercising jurisdiction only in religious matters.

[187] Sanh. 41a bottom; Sabb. 15a; Aboda Zara 8b; Rosh Hashana 31a bottom; Mechilta de R. Simon p. 126; J. Sanh. I, 1, 18a; VII, 2, 24b; Nachmanides to Numbers xxxv, 29.

[188] Sota 8b; Keth. 30a bottom; Sanh. 37b.

[189] _Antiq._, XIII, x, 6.

[190] _Ibid._, XVIII, i, 4.

[191] _War_, II, viii, 9.

[192] _War_, VI, ii, 4.

[193] Schuerer, II, 262. See J. Juster, _Les Juifs dans l’Empire Romain_, II, 142, note 5.

[194] Agrippa’s Letter to Caligula; Philo _Leg._, 39, quoted in Juster _loc. cit._, p. 139, note 1.

[195] Acts vi, 7 et seqq.

[196] Acts xxi, 28f; (xxiv, 6; xxi, 29); xxvi, 21; (xxiii, 6, 29; xxiv, 5, 12ff; xxv, 7f. 27; xxii, 24, 30); xxiv, 6 (8); xxiii, 3, 9.

[197] _Antiq._, XX, ix, 1. Jos. Lehmann, _Révue d. Etudes juives_, XXXVII, 1898, pp. 13, 14.

[198] See note 33.

[199] Juster, _l. c._ 122-149, from a thorough examination of the sources comes to the conclusion that the Sanhedrin preserved the right of both pronouncing and of carrying out a capital sentence until the year 70 C. E.

[200] In Rom. 1, 6, c. 7, quoted by Juster, _ibid._, p. 150.

[201] Didascalia Ch. xxvi, 6; xix, 2. Juster, _ibid._

[202] See note 33.

[203] Sanh. 52b.

[204] J. Meg. III, 2. 74a. Graetz (3rd edit.), IV, 284f. Bacher, _Agad. d. pal. Amoraer_, II, 94f. For a different interpretation, see Perles, _Monatsschrift_, XXXVII, 359-361.

[205] Ber. 58a.

[206] Baba Kamma 117a, 117b.

[207] Sanh. viii, 7. According to tradition, the offender may be killed _flagrante delicto_ in the three cases there mentioned, only if he has received legal warning (see to notes 153-158), and if a lesser physical injury would be insufficient to prevent the crime. Mishna Sanh. ix, 6 mentions three other cases, in at least one of which the zeal of the one who would strike down the offender is restrained by a number of conditions.

[208] Sabb. 156a.

[209] Ep. ad. African. Par. 14. Juster _l. c._, p. 151, note 2.

[210] Sanh. 51b.

[211] Mishna Sanh. xi, 1.

[212] Sanh. 86a.

[213] Tos. Sanh. xiv, 1; Sanh. 71a.

[214] See note 98.

[215] Deut. xxi, 18-21; Mishna Sanh. viii, 1-5; Tos. Sanh. xi, 6; Sanh. 71a.

[216] Note 120.

[217] Sanh. 81b.

[218] Sanh. 51b.

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

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

[221] Sanh. 53a, top, makes the claim that the decisions concerning the four methods of capital punishment are traditional.

[222] Mishna Macc. i, 10.

[223] It is not unlikely that both statements represent historical theory rather than historical fact, a suggestion that seems to find support from the words that follow, in which Rabbi Akiba and Rabbi Tarfon claim that had they been members of a Sanhedrin, the death sentence would never have been imposed.

[224] See notes 104 and 105.

[225] Tur, Hoshen Mishpat, I. 3.

[226] Responsa XVII, 8. Cf. Teshuboth Ha-Rashba, II, 290.

[227] Lindo, _The Jews of Spain_, p. 150f.

[228] Responsa XVI, 1.

[229] Ber. 62b, 72a.

[230] Yad, Hilchoth Hobel u-Mazzik, viii, 2.

[231] Judah ben Asher, Responsa Zichron Jehuda f. 55b, No. 75, quoted by David Kaufman, _Jew. Quart. Rev._ 1896, VIII, pp. 219f.

[232] Ibid.

[233] Responsa of Rashba V, 290.

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

[235] Lindo, _Jews of Spain_, 160-162. Graetz, _Geschichte_, VIII, 44.

[236] Jacobs, _Jews of Angevin England_, pp. 331, 43, 49.

[237] Responsa, 138, _Jew. Encycl._, Art. Lithuania.

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

Transcriber note:

Inconsistent spelling has been standardised. Punctuation errors have been corrected. Italics are enclosed by underscores. Smallcap text has been capitalised.