~ ja Is '/////4/% t. ' V ? ^p r r 4? ? $* '%r 8 3 %^ 4%i%%^ 4%%i24^ ^M^, %/s/s, THE CRIMINAL CODE OF THE JEWS THE CRIMINAL CODE OF THE JEWS ACCORDING TO THE TALMUD MASSECHETH SYNHEDRIN LONDON SMITH, ELDER, & CO., 15 WATERLOO PLACE 1880 {All rights reserved'} MR AND MRS JOSEPH N. UNDO THIS SERIES OF PAPERS Is gbbicatefr WITH EVERV SENTIMENT OF KINDLY REGARD 2094518 PREFACE, THE following chapters appeared originally as articles in the ' Pall Mall Gazette.' They are here re-printed without material altera- tion, and with some few additions. To the kindness of Mr. F. Greenwood, the writer is indebted for many suggestions, which were followed when preparing them for publication. CONTENTS, CHAPTER I. PAGE INTRODUCTORY . i CHAPTER II. THE DEVELOPMENT OF THE MOSAIC CODE OBSO- LETE LAWS THE LEX TALIONIS PRESCRIP- TIONS OF THE TALMUD . . . , .16 CHAPTER III. THE CONSTITUTION OF THE COURTS THE QUALI- FICATION OF JUDGES PERSONS DISQUALIFIED 28 CHAPTER IV. THE CONSTITUTION OF THE COURTS DIVISION OF AUTHORITY PROCEDURE . . . .42 CHAPTER V. THE RULES OF EVIDENCE 56 Contents. CHAPTER VI. PAGE FORM OF TRIAL IN CAPITAL CASES . . . 70 CHAPTER VII. THE VARIOUS METHODS OF EXECUTION . . 84 CHAPTER VIII. MURDER ADULTERY IDOLATRY . . .96 CHAPTER IX. CITIES OF REFUGE THE PUNISHMENT FOR PER- JURY FLOGGING .in CHAPTER X. MISCELLANEOUS LAWS CONCLUSION . ... . 125 THE CRIMINAL CODE OF THE JEWS. CHAPTER I. \ INTRODUCTORY. HE who would understand a people must know its laws, especially its penal laws : not the mere dicta of its statutes, but their practi- cal application ; and its scheme of judicial ad- ministration. The legal code of a community is to coin a pseudo-scientific term but a sys- tem of applied morals. In the criminal legisla- tion of a country is embodied the public stan- dard of right and wrong. The organisation of its tribunals, the simplicity of its procedure, the severity of its penalties, the nature of its punishments, are so many living illustrations Criminal Code of the Jews. of the wisdom and forethought and justice and humanity of those who frame, interpret, and abide by these laws. Nowhere are national peculiarities more characteristically prominent than in the juridical scheme and penal practice of a people. Every detail is instructive. What, for instance, can be more suggestive of the temper of the ancient Egyptian, with his high notions of rectitude and his stern sense of justice, than the pro- hibition of pleading on behalf of either plain- tiff or defendant ? Sombre, impassive, and undemonstrative sat the thirty judges and their self-elected president in the hall of assembly. With reverential awe for the wise men, the suitors entered, each bringing with him a written statement of the cause to be adjudicated upon. The depositions were handed to the chief of the tribunal, who re- ceived them without question or comment. The parties as silently withdrew : only when the decision of the court had been arrived at were the plaintiff and defendant re-admitted, Introduction. in order that the judgment might be commu- nicated to them. The picture of inflexible impartiality here presented to us is com- plete. Again, can anything be more charac- teristic of Assyrian life than the inequality between man and woman in the eyes of the law which we find indicated in some of the few fragments hitherto discovered of the penal code of Ashur ? ' If a husband/ runs a cuneiform text, ' say unto his wife " Thou art not my wife," he shall pay half a minna of silver.' But ' if a woman repudiate her hus- band, and say unto him, " Thou art not my husband " (ina naru inadussu] > he shall drown her in the river.' In the criminal system of the Athenians, too, it is not a little indicative of the refined, hypersensitive, and artificially cultured Greek to find him attempting to emulate the ' gods ' by extending to the chil- dren of an offender the punishment inflicted on their parent. Even when a crime had already been expiated by death, the descend- B 2 Criminal Code of the Jews. ants of the condemned suffered the penalty of legal disqualification. Students of antiquity have been by no means indifferent to the lesson thus conveyed. The legal codes of most ancient peoples have been diligently examined. The laws of the Brahmans and of the Parsis, of the Greeks and of the Romans, of the Chinese and of the Mussul- mans, have found zealous exponents. The judicial system of the Hebrews alone has been neglected. Notwithstanding its value as a record of Jewish thought and feeling and custom, it is almost unknown to English scholars and jurists. It is probably no exaggeration to assert that not a dozen of the foremost Biblical critics in England know anything of the legal code of the Jews. The most profound igno- rance prevails regarding the practical mode of administering law and justice as it ob- tained among the Hebrews during the pro- phetic period and at the time of the destruc- tion of the second Temple of Jerusalem. Introduction. The notions of Jewish law and jurisprudence generally current are extremely vague and undefined. The popular conceptions upon the subject are gathered from the injunctions and ordinances of the Mosaic Pentateuch. As a matter of fact, the laws of Moses are about as well calculated to give one an in- sight into the Hebrew legal scheme as a perusal of our statute-book a collection of our Acts of Parliament, our written law alone, without the aid of common law and precedent, would give of the English system of juridical procedure. He who would understand the penal code of the Hebrews the practical code, that is, of the people, as it was in operation during the later period of Jewish nationality must not depend upon the Pentateuch. He must turn to the Talmud that much maligned and even more misunderstood compilation of the rabbins ; that digest of what Carlyle would term allerlei-wissenschaften ; which is at once the compendium of their literature, Criminal Code of the Jews. the storehouse of their tradition, the ex- ponent of their faith, the record of their acquirements, the handbook of their ceremo- nials, and the summary of their legal code, civil and penal. Herein he shall find a sys- tem of jurisprudence ingenious and elabo- rate ; a scheme of organisation at once simple and effective ; and a criminal law the most interesting and probably the most hu- mane that antiquity has transmitted to us. The sensation produced some few years ago by the appearance of Dr. Deutsch's bril- liant article on the Talmud is scarcely yet forgotten. Had this accomplished scholar been longer spared, literature would doubt- less have been enriched with many a mono- graph upon the thousand and one subjects treated of in this composition of the rabbins. Fate has decided otherwise. But the seed he cast abroad into the world has not all fallen into stony or sterile soil. He succeeded in arousing a general and wide-spread interest in the Talmud and its contents ; an interest Introduction. which the modern spirit of inquiry has in- tensified. We purpose, therefore, to devote to the criminal law of the Talmud as laid down in Massecheth Synhedrin" not wholly, but principally there a few brief chapters explaining the organisation of tribunals among the Jews, the constitution and juris- diction of their Synhedrin, their system of pro- cedure, their mode of examining witnesses, their classification of crimes, the punishments they inflicted, and their methods of executing those capitally condemned. As we before observed, the subject is one entirely unex- plored ; and an exposition, however brief and imperfect, cannot but throw additional light upon the character, intellect, and peculiarities of a truly wonderful people. Two noteworthy we cannot say success- ful attempts have of late been made to pre- sent to modern times a fair and impartial view of the criminal legislation of the He- brews. One of these is the monograph of M. Thonissen, in his ' Etudes sur 1'Histoire 8 Criminal Code of the Jews. du Droit Criminel des Peoples Anciens.' The other is the ' Legislation Criminelle du Tal- mud' of Dr. Rabbinowicz. Both must be regarded as failures the former conspicu- ously so. M. Thonissen, who is one of the ablest Catholic professors in Belgium, has failed from want of special knowledge ; Dr. Rabbinowicz has failed in spite of profound Talmudic knowledge and general erudition. A few observations in explanation of this will throw some light upon the peculiar nature of the treatise which forms the basis of our knowledge of the Jewish penal code. M. Thonissen has founded his study of the sub- ject upon the text of the Pentateuch, dis- regarding altogether the commentaries of the rabbins and their expositions. Now we have no wish whatever to enter into any argument as to the value of Hebrew tradition or the Divine origin of the Oral Law. This, how- ever, we assert : that the enactments, civil and criminal, of the Five Books of Moses, as they stand in the Bible are unintelligible Introduction. and incomprehensible unless accompanied by the explanation furnished by the Mischna and Ghemara, which together constitute the Talmud. In the first place, Moses indicated only general principles for the guidance of the Hebrew judges. A system of legal pro- cedure is altogether wanting. ' The wisdom of a lawgiver,' says Bacon, ' consists not only in a platform of justice, but in the application thereof.' Moses furnished in the written law such a platform of justice ; but the practical application thereof can only be gathered from the oral law, from the traditions and prece- dents of the Mischna. We will quote one contingency only one among many others that arise in practice to show the occasional inadequacy of the provisions of the Pentateuch taken alone. According to the Mosaic law a perjurer when convicted was to suffer the same punishment as the person against whom he testified would have been condemned to had the false accusation been established. In most cases the rule would suffice ; in a great io Criminal Code of the Jews. number it would be impracticable. For in- stance, a kohen a priest, that is was for- bidden to marry a woman who was divorced, or a widow who had performed the cere- mony of loosening the shoe of her brother-in- law. Should he in defiance of this prohibition marry such a female his sons were debarred from the priesthood. Assuming now that an Israelite charged a kohen with being the issue of such a union a charge which, if proved, would remove him from his office and this witness was subsequently convicted of per- jury : how could the slanderer who had vio- lated his oath be degraded from what he was not permitted to assume the functions of the priesthood ? No penalty in such a case is provided by the Mosaic code. Yet it could scarcely have been the intention of the legislator to punish the lying witness in one case and permit him to get off scot free in another. The traditionary procedure clears up the difficulty. Similar difficulties con- tinually arise in the practical application of Introduction. 1 1 most of the written enactments. In all these instances we are driven to the Oral Law for a satisfactory explanation. The Hebrew law- giver foresaw probably the awkward contin- gencies which would inevitably occur con- sequent upon a hard and fast adherence to ordinances formulated in the Pentateuch, and suited only to the circumstances and conditions of the people under his personal guidance and supervision in the Wilderness. Hence his injunction that the Jews should, immediately upon their settlement in Palestine appoint them 'judges and officers,' i.e. form regular courts for the administration of justice. This of course necessitated the inauguration of a recognised mode of procedure formulated in consonance with the traditions of the people, and varied as the exigencies of the nation required and experience rendered advisable. The nature of the arrangements made in compliance with the Mosaic injunction can be gathered only from the Talmud. M. Thonissen's essay upon the Jewish code re- 1 2 Criminal Code of the Jews. sembles most nearly that which a foreigner would write upon the English criminal laws after a perusal of our statute-book our Acts of Parliament disregarding such authorities as Blackstone and Coke and Bracton, and their common-law system, and ignorant alto- gether of the practice of the courts and the precedents they have established. What such an exposition would be worth may easily be imagined. That M. Thonissen should under these circumstances have failed is scarcely to be wondered at. M. Rabbinowicz's failure is now to be accounted for. He has given to the world a disquisition upon the penal code of the Hebrews in the shape of a critical transla- tion of the treatise Synhedrin, and of such portions of Makkoth as refer to the punish- ment of criminals. He is himself a profound Talmudist ; but he does not make allowance for those who have not the advantage of being intimately acquainted with the rab- binical authorities. The Talmud, be it ob- Introduction. 1 3 served, is essentially argumentative ; this fact should constantly be borne in mind. The Mischna no sooner lays down an axiom than a Beraitha (precedent or tradition whose origin is coeval with those contained in the Mischna, but which the editor of the last- named collection decided to omit) is brought forward to contradict it. Hereupon the com- mentators set to work in order to harmonise the apparent inconsistency or disaccord. An opponent will then urge against the agree- ment thus established the opinion of one of the Thanaim rabbins, or heads of colleges, who were anterior to, or contemporaries of, the editor of the Mischna. The Amoraim doctors whose disquisitions constitute the Ghemara thereupon take up the discussion pro and con. Frequently the arguments terminate, and apparently no conclusion is arrived at. It is this that renders the study of the Talmud so extremely difficult. It seems impossible to understand which of the views enunciated by the respective authori- 14 Criminal Code of the Jews. ties we are to accept as decisive. Only those accustomed to the mode of reasoning adopted by the rabbins, and acquainted with the relative value to be attached to the dicta of the several doctors as explained in the various commentaries, can deduce the laws with any approach to accuracy. Many points, however, are wholly unde- termined, and probably always will remain unsolved. In giving a translation of the treatise Synhedrin M. Rabbinowicz has therefore placed in the hands of the reader the material whence he may derive a know- ledge of the criminal law. Some explana- tions of seemingly difficult points are given ; but the student must pick his own way with- out the training or help which would enable him with profit to do so. Of the multifarious opinions expressed he nine times out of ten knows not which to choose. Hence, despite the undoubted ability of the author, and the acknowledged merit of the work itself, Dr. Rabbinowicz has not succeeded in giving a Introduction. 1 5 digest of the criminal law of the Talmud. His introduction is by far the best part of the work ; but the views therein expressed do not always merit complete and entire acceptance. We shall, as we proceed, in- dicate here and there the doubtful points, as they appear to us, of M. Rabbinowicz's summary. Having thus briefly, by way of intro- duction, explained the source whence our knowledge of the Hebrew penal code is to be derived, and pointed out what we regard as the defects of those who have of late attempted an exposition of the enactments of which it is composed, we may proceed to the consideration of this interesting judicial system. 1 6 Criminal Code of the yews. CHAPTER II. THE DEVELOPMENT OF THE MOSAIC CODE OBSOLETE LAWS THE LEX TALIONIS PRESCRIPTIONS OF THE TALMUD. THE penal code of the Hebrews in the Talmudic period had developed itself gra- dually in a manner somewhat similar to the Athenian criminal law in the days of Demos- thenes. In each of these legal systems we can discover three elements superimposed. In the case of the Greeks there had been originally the laws of Draco formulated about six centuries before the Christian era. They consisted of a series of religious ordinances and traditionary practices. These were sub- sequently modified by Solon ; still further amended in all probability by Clisthenes after the triumph of the Democracy. This period saw the institution of popular tribu- Mosaic and Talmudic Laws. 1 7 nals at Athens, and the assimilation of the mode of procedure in civil and criminal cases. Towards the end of the fifth century B.C. the progress of the state and the multiplying of parties led to a further development of the legal system. One of the results of this, by the way, was the appointment of a public prosecutor. Three analogous stages of growth though not quite so clearly marked in the second epoch are discernible in the development of the Hebrew laws, as we find them formulated in the Talmud. There are, in the first place, the Mosaic injunctions, religious, social, and political, which constitute the foundation of the scheme. There are then the practical details as to the organisa- tion of the tribunals. These must have had their origin in the early days of the Jewish Commonwealth ; most probably during the lifetime of Joshua. One of the principal commands laid upon the Israelites in the Wilderness was, as we have already men- tioned, to appoint judges, i.e. establish courts 1 8 Criminal Code of the Jews. for the administration of justice, as soon as they were settled in Palestine. (Deut.xvi. 18.) Lastly, we find in the Talmud, laws attri- butable evidently to the period which inter- vened between the destruction of the first and second Temples. About this time a number of the Mosaic ordinances had be- come utter anachronisms. Some were per- fectly impracticable one or two were no longer even understood. The exigencies of the age and the circumstances of the people necessitated the adoption of several enact- ments unknown to the Pentateuch. Through- out, however, the whole of the penal code of the Talmud as in its various stages of de- velopment the Divine origin of the Hebrew legal system is never for a moment lost sight of. The abolition of a Mosaic enact- ment is with the Rabbins simply a state- ment that it has fallen into desuetude. In formulating a new law, rendered necessary by the altered condition of their existence, it is invariably founded upon some principle or Mosaic and Talmudic Laws. 19 other contained in the Written Law, or de- ducible from the general dicta therein laid down by their inspired legislator. Like the Greeks ' The Sons of Saturn,' sings Hesiod, ' gave to man justice, the most precious of good gifts' the Jews, in the interpretation of their ancient laws, as in the application of new ordinances, were ever mindful of the Divine source whence their system of judicature originated. The Mosaic prescriptions, which in the course of time had fallen into desuetude, and had in fact become altogether obsolete, in- clude many of the most characteristic laws of the Pentateuch. Am.ong such ordinances was the injunction which determined the punishment of a stubborn and rebellious son. Of this commandment the Ghemara by the dicta of Rabbi Simon observes : ' The Biblical law concerning a stubborn and re- bellious son never has been and never can be practically applied. If we nevertheless study it, it is simply as one does a literary ex- c 2 2O Criminal Code of the Jews. ercise.' Similarly, the Mosaic enactment, in accordance with which a city given to idol- atry was ordered to be destroyed, had be- come a pure anachronism in the latter days of the Jewish nationality. According to the Talmud, this law could not have been carried into effect at any period. And the penal code further took no longer any cognisance of a large class of offences known as acts of omission. An extremely important ordi- nance of the Pentateuch concerning the pu- nishment of perjurers was imperfectly under- stood by the Rabbins. The apparently simple law which determined the penalty incurred by witnesses whose evidence was proved to be false was beset with difficulties, and found inapplicable to the times. The Ghemara declares through Rabba that the ' Mosaic injunction which condemns the witness who is perjured, by proving an alibi against him, is a hidousch a law we are not able to ex- plain or comprehend.' Among the ordinances of Moses, of which Mosaic and Talmudic Laws. 21 no trace is to be found in the Talmud, is the so-called lex talionis. More nonsense has probably been written respecting this law of retaliation (which crops up in- every code of antiquity) than would fill the proverbial bushel a goodly number of times. It is gene- rally quoted as satisfactorily demonstrating the harshness and severity of the punish- ments ordained in the Pentateuch. More than one theological school con- sider the dicta ' eye for eye, tooth for tooth ' as the very quintessence of Jewish legisla- tion. The odium attached to the Mosaic code, on account of this law, furnishes an- other illustration of the vulgar adage about giving a dog an ill name. Curiously enough, there is a remarkable parallel to this miscon- ception in the case of the Athenian jurist Draco. His code is fabled to have been written in blood ; death was the least of the punishments he inflicted. His name has fur- nished an appellation for all that is harsh even to cruelty, unmerciful even to barbarity. 22 Criminal Code of the Jews. Yet what is the truth ? His laws relating to homicide (graven on a pillar at Athens) con- tinued in force as long as the city was inde- pendent. A murderer was permitted, under this code, to fly in order to escape the ven- geance of the family of his victim. Sentence of exile could be pronounced by the judges in cases of manslaughter. Degradation from the rank of citizen was one of the penalties of his system. And more remarkable still, Pollux (ix. 61) distinctly says that the fine for slaying a man was ten oxen ! So much for the reputed severity of the Draconic Laws. The ridiculous and wholly absurd nature of the prejudice anent that bugbear of the Five Books of Moses, the law of re- taliation, is even more unfounded than in the case of Draco. The lex talionis was simply a law by which a person deliberately and purposely and maliciously inflicting upon another cer- tain specified injuries, was liable to have similar injuries inflicted upon his own person. Mosaic and Talmudic Laws. 23 This penalty was directed against a mode of vengeance extremely prevalent in ancient days. Mutilation, dismemberment, and simi- lar eccentricities of our progenitors, ' the chil- dren of the world,' were common methods of hurting one's supposed enemies, especially in eastern lands. There such practices are by no means forgotten even now. The ob- ject of the criminal was to palpably and visibly disfigure or emasculate his victim. In such cases what would have been the deter- rent effect of a pecuniary indemnity, of incar- ceration, or even of corporal punishment ? None whatever, where a man had determined upon injuring his opponent in a manner suffi- ciently conspicuous to disgrace or dishonour him. Nothing but the lex talionis was likely to prove of service in preventing the commis- sion of such inhuman and dastardly outrages. That the law was not otherwise applied by any nation we have ample evidence to show. Among the Greeks, for instance, who in- cluded this enactment in their ancient code, 24 Criminal Code of the Jews. (' Evil for evil,' says /Eschylus, 'was the sen- tence of ancient days ') one of the principal functions of the second of the Athenian tribu- nals was to arrange between the murderer and the parents of his victim the payment of the blood-money authorised by their penal laws. To suppose that a man guilty of a capital offence should be condemned in a pecuniary penalty, while one accidentally in- juring his neighbour was subject to the lex talionis, would be the height of absurdity. Among the Hebrews the necessity for pre- serving the law of retaliation as part of the legal code had disappeared long before the Talmudic period. In accordance with their traditions, all cases of assault or wounding were punishable by fines, the offender making full and ample indemnity to the person hurt. With regard to the new laws formulated in the Talmud, and of which no trace what- ever is to be discovered in the Pentateuch, there is one of the utmost significance ; one that will admit of a very simple explanation, Mosaic and Talmudic Laws. 25 though M. Rabbinowicz, in his introduction before alluded to, seems to misapprehend it somewhat. It is the law requiring evidence that a warning was given to the individual about to commit a crime, that the act he con- templated was an offence entailing such and such a punishment or penalty. The Bible knows nothing whatever of such a proviso. It required merely the testimony of compe- tent witnesses as to the fact that a crime had actually been committed ; and that the said witnesses had detected the accused in fla- grante delicto. Certain of the Rabbins, how- ever, seem to assert that to ensure conviction in a capital trial, it must be proved that the culprit prior of course to the perpetration of the offence was cautioned that the crime he contemplated was murder ; that the perpetra- tion entailed death ; and more, he must have been informed which of the four kinds of death he was liable to suffer if convicted ! This certainly is a very remarkable pro- vision if intended to be construed as Dr. 26 Criminal Code of the Jews. Rabbinowicz points out. He regards this law of the Talmud as purposely enacted in order to abolish altogether the punishment of death. It would of course have this effect. For no individual would be likely to inform his friends or neighbours, or acquaintances, that he was about to commit a murder. The op- portunity to give him this preliminary warn- ing would never, in point of fact, occur. The same of adultery, or seduction with violence, crimes which were also punishable with death. By insisting upon this conditional circumstance as absolutely necessary to ensure a capital conviction, the criminal would, as intended, invariably escape the penalty of death. Against the views of Dr. Rabbino- wicz we would urge two very simple facts. In the first place the ordinances and precau- tions of the Talmud were already and without the proviso referred to more than sufficient to prevent the sentence of death from being pronounced except in extremely rare cases. And in the second place, the Mosaic and Talnmdic Laws. 27 opinions of many of the Thanaim are, as we shall in the proper place fully explain, op- , posed to the assumption of Dr. Rabbinowicz. The true purpose and object of, this curious institution of the Talmud will then appear. 28 Criminal Code of the Jews. CHAPTER III. THE CONSTITUTION OF THE COURTS THE QUALIFICA- TION OF JUDGES PERSONS DISQUALIFIED. FOR the administration of justice there existed among the Hebrews three kinds of tribunals : i, Petty courts composed of three judges, and competent to adjudicate upon civil causes only ; 2, The provincial Synhedrin, consisting of three-and-twenty members, and having criminal jurisdiction as well as the power of deciding in ordinary matters ; and, 3, The Great Synhedrin of Jerusalem, which was the supreme authority of the nation. In contra- distinction to the practice of every other ancient nation, the King, among the Jews, was not permitted to exercise judicial func- tions. Unlike the High Priest, he could neither judge nor could he be judged. Nor Organisation of the Tribunals. 29 had the Sovereign any voice, prerogative, or influence in the appointment of the judges ; nor was it for him to interfere in any way with the organisation of the various tribunals. The people alone had the right to nominate the members of the Synhedrin. The scheme of legal administration was based on the representative system and what we should nowadays term universal suffrage. In the case of the petty courts for the trial of civil processes the mode of appointment was es- sentially primitive and simple. The plaintiff and defendant in a cause nominated each of them a competent person to act as judge. The two who were thus selected together named a third. Of course these tribunals were not permanent They sat only when required. In the case of the courts of criminal juris- diction the mode of organisation and the manner in which they were constituted were as follows : Every town inhabited by one hundred and twenty families could have Criminal Code of the Jews. a Synhedrin of three-and-twenty members To each place thus qualified the Great Syn- hedrin of Jerusalem sent an order bidding the residents assemble and nominate from among themselves such as were ' learned and modest and popular.' Fit representatives and apt were accordingly elected. A return was thereupon made to the Great Synhedrin, and the supreme body immediately despatched an authorisation, in conformity with custom, which constituted the delegates named a cor- porate Synhedrin. As a rule these tribunals in the smaller towns sat only occasionally for judicial purposes. But in large and im- portant centres there were, necessarily, per- manent courts. In those cities where rabbini- cal colleges were established for the study of the law, such institutions, by a natural transi- tion and development, came to be charged with the administration of justice. Such, for example, were the academies of Jabneh, under the famous Gamaliel ; of Beni Berak. under Rabbi Akiba ; of Lud, under Rabbi Organisation of the Tribunals. 31 Eleazar ; of Sikhni, under the direction of Hananya ben T'radyon. In Jerusalem there were three Synhedrin : two ordinary, of twenty-three members each, and the Great Synhedrin of the nation, con- sisting of seventy-one of the most eminent judges of the country. The first sat in that part of the Temple called the Har-habaith ; the second, in the court known as the Azara ; and the supreme council in the Lish- kat-hagazith. The first consisted of members selected from the various provincial Synhe- drin ; the second was recruited from the first ; and the Great Synhedrin, in turn, filled up any vacancies in its numbers from those who composed the second. This completed the administrative system of the Hebrews for judicial purposes. The organisation was ex- ceedingly simple, eminently representative, and it seems to have been thoroughly effec- tive. Every suitor found at his own door a tribunal competent to hear and decide his plaint without delay or expense ; criminals 32 Criminal Code of the Jews. were spared suspense and ignominy by being able to secure an immediate trial ; and within easy reach of either complainant or defendant, prosecutor or prisoner, was a permanent Syn- hedrin to which appeals could be made from the sentence or decision of the local court. Under this scheme every man every Jew, that is might aspire to the dignity of a judge. In order, however, to prevent any but competent and well-qualified persons from being appointed to the various tribunals ample precautions were taken. It was not necessary in the case of the provincial Syn- hedrin to guard against sheer inefficiency. No Israelite could be absolutely ignorant of the law. It must be remembered that educa- tion was well advanced among the Hebrews, especially after the first or Babylonian cap- tivity. A system of compulsory instruction had been introduced by Joshua, the son of Gamala. There was a school-board for each district. Every child more than six years of age was obliged to attend the communal Organisation of the Tribunals. 33 schools, unless receiving private lessons at home from qualified tutors. Such importance does the Talmud attach to the training of the young that it enters into the minutest details upon the subject. From his earliest years the Jewish boy was a diligent student of the Bible. It was his primer and reading-book. Its laws and traditions were almost as fami- liar to him as his own existence ; they formed part and parcel of his every-day experience. In riper manhood he attended each even- ing after labour the expositions of the Scrip- ture. On Sabbaths, on festivals, and on the mornings of Monday and Thursday, he was present as a religious duty at the public read- ing and interpretation of the law. A Jew could not but be well acquainted with the leading principles of his legal code and their general application. He was, in fact, competent to decide much as our jus- tices of the peace are any ordinary infractions of the law likely to occur in his own district. But to become member of a Synhedrin having D 34 Criminal Code of the yews. extensive criminal jurisdiction, to be qualified to act as judge in a trial involving the life or depth of a fellow-creature, was another matter. Here legal acumen, proved ability, sound knowledge, and undoubted integrity were required. Such men, ' learned in the law' and versed in science, might subse- quently be admitted into the Synhedrin of Jerusalem, the supreme council of the na- tion. The standard of qualification was therefore necessarily high in every particular. Accordingly, when a mandate from the capi- tal authorising the formation of a criminal tribunal arrived in a town, the residents took every precaution to nominate such men whose antecedents and acquirements guaranteed their fitness for the posts they were to occupy. The election of representatives incompetent and inapt might have been followed by a refusal of the certificate of legality from the Great Synhedrin. Few things are more remarkable in the Hebrew penal code than the clauses by which Organisation of the Tribunals. 35 certain persons were disqualified from acting as judges, under any circumstances whatever. All who made money by dice-playing, by any games of hazard, by betting on pigeon- matches, and similar objectionable practices, were not only, incapable of becoming members of a tribunal, but were not permitted to give evidence in a trial. The Ghemara regards a man who gains money by the amusements named as actually dishonest. A Jew who was in the habit of lending money upon usury was in like manner disqualified. The disqualification extended not only to those who took interest of their brethren, but even to cases where the money had been borrowed by a heathen. Nor could a slave-dealer sit as judge. The Talmud stigmatises such a person as inhuman and unfeeling, and inca- pable therefore of deciding an issue involving the life or liberty or even property of another. Of course this ordinance applied to the traffic in human creatures who were not Jews ; the kidnapping of an Israelite being punishable D 2 36 Criminal Code of the yews. with death. The following were also regarded as judicially incapacitated : those who dealt in the fruits of the seventh year, for they could not be deemed conscientious ; those who were in any way concerned in the cause to be adju- dicated upon, for they were interested ; all relatives, no matter what the degree of con- sanguinity, of the person accused ; all who would inherit property from the criminal who was on trial, or would benefit by his condem- nation or loss ; and persons who had been guilty of seduction or the lesser form of adul- tery which was punishable by fine or flogging. One other disqualification, noteworthy in its way, also existed. A man who had not, or had never had, a fixed occupation, trade, or business, by which he earned a livelihood, was not allowed to act as judge. ' He who neglects to teach his son a trade,' say the rabbins, ' is as though he taught him to steal.' Such a lad had no resource in manhood but to beg or rob. A man without a calling or profession was moreover regarded as not cal- Organisation of the Tribunals. 37 culated to have consideration or sympathy for those exposed to the hard contingencies of life. In trials where capital punishment might be inflicted in case of Conviction the following also were disqualified : An aged man, because his years and infirmities were likely to render him harsh, perhaps obstinate and unyielding ; a judge who had never had any children of his own, for he could not know the paternal feeling which should warm him on behalf of the son of Israel who was in peril of his life ; and a bastard ; not an illegitimate son for such a relationship could not exist among the Jews but one born of a forbidden or criminal connection. Nor under any circumstances was a man known to be at enmity with the accused person permitted to occupy a position among his judges. Such enmity was, by the way, presumed to exist when the judge or witness had not spoken to the person charged with any offence for a period of more than three days. According to Massecheth Synhedrin, Criminal Code of the Jews. mental qualities and intellectual acquirements of no ordinary character were necessary to constitute a competent judge. He was, in the first instance, to be modest, of good re- pute among his neighbours, and generally liked. He must have been intimately ac- quainted with the written enactments of the legal code, its traditional practices, the precedents of the colleges, and the accepted decisions of former judges. He must have studied not alone the laws applicable to the times in which he lived, but those which from altered circumstances had fallen into desue- tude. He was required to be a proficient in various branches of scientific knowledge, es- pecially in medicine and astronomy. That the rabbins were well grounded in physiology, pathology, and such modes of chemical and organic analysis as were then understood can be shown by many instances. Thus we find Rabbi Ismael and his pupils engaged in dis- section in order to study the anatomy of the human frame (Bekcroth) ; Baba bar Boutah Organisation of the Tribunals. 39 (Ghittin) is recorded to have demonstrated, in a case before him, that a witness had attempted to impose upon the court, by bringing the albumen of an egg, and falsely representing it to be spermatic fluid. And the Academy of Hillel is said to have con- tained among its disciples eighty who were acquainted with every branch of science known in those days. A knowledge of lan- guages, too, was indispensable for those who aspired to the membership of a Synhedrin. The services of an interpreter were never permitted. The judges were therefore bound to be acquainted with the tongues of the neighbouring nations. In the case of a foreigner being called as witness before a tri- bunal it was absolutely necessary that two members should understand the language in which the stranger's evidence was given ; that two others should be able to speak to him ; while another was required to be both able to understand and to converse with the wit- ness. A majority of three judges could 40 Criminal Code of the Jews. always thus be obtained on any doubtful point in the interpretation of the testimony submitted to the court. At Either there were three rabbins acquainted with every language then known ; while at Jabneh there were said to be four similarly endowed with the gift of ' all the tongues.' As regards the general ability of the judges, Rabbi Jehuda asserts that ' they should be such apt and skilful logicians that they could demonstrate from the written text of the Pen- tateuch itself that all the reptiles therein de- clared to be impure were pure ' ! Indeed, to those acquainted with the Talmud, nothing is more startling than the resources of argu- ment displayed by the rabbins. That it is in many cases purely sophistic does not detract from their high character any more than the forensic casuistry of a modern counsel de- tracts from the morality of the man. And their intellectual acumen, their logical powers, were employed on behalf of the criminal, Organisation of the Tribunals. 41 whose advocates the judges themselves were. Of this we shall see more later on. When, therefore, the Talmud insisted upon a high standard of qualification for the members of the Synhedrin, it was animated not alone by a due and proper regard for the dignity of the judicial office, but by a merci- ful consideration for the offender, and a desire to secure for one whom they looked upon as an unfortunate brother, the advantage of skilful, acute, and learned counsel. 42 Criminal Code of the Jews. CHAPTER IV. THE CONSTITUTION OF THE COURTS DIVISION OF AUTHORITY PROCEDURE. THE jurisdiction exercised by each of the three kinds of tribunals engaged in the admi- nistration of the penal laws was clearly de- fined. A conflict of authority was impossible. Each court took cognisance of certain speci- fied offences, and of these only ; each court possessed the power of inflicting certain punishments or of imposing certain penalties, and none other. Even the amount of fine or indemnity payable in the majority of cases was already determined by written enact- ment. And where this was not so fixed or ap- proximately indicated, the constitution of the tribunals permitted of arbitration, and an estimate of the penalty incurred by an offender could readily be arrived at. Jurisdiction of the Courts. 43 Before describing the authority and privi- leges attached to the respective tribunals it is necessary to note that, owing to the pre- scriptions of the Mosaic code, the classifica- tion of crimes among the Hebrews was some- what different to that generally prevailing in modern times. Many offences which in our days are considered to infringe only the moral code were regarded among most an- cient peoples in a very different light. Such, for example, are adultery and idolatry. These among the Jews entailed death. Again, many crimes now generally punish- able with imprisonment were, according to the Hebrew laws, only punishable by fine or pecuniary indemnity to the prosecuting party. Among these are theft of all kinds, assaults, injuries to the person, and damage to pro- perty. Another large class of offences was un- known to the Jews. There were in Pales- tine no game laws ; there could therefore be no poaching. The relief of the poor was 44 Criminal Code of the Jews. compulsory ; there was no pilfering. It was permitted to enter a neighbour's garden or orchard or vineyard and eat one's fill ; petty larceny and trespassing were therefore impos- sibilities almost in rural districts. Hence the penal code of the Hebrews dealt practically with a comparatively small number of of- fences briefly specified, clearly defined, and entailing in each case a fixed punishment or penalty, which could not be varied. The jurisdiction of the respective courts admitted, therefore, of easy definition. The ordinary tribunals, composed of three judges, adjudi- cated summarily upon all cases of assault, all cases of theft, all cases of robbery with vio- lence, and all cases of injury to person or damage to property. In fact, all crimes en- tailing pecuniary penalties upon those con- victed of their commission were tried before the courts of three members. In every in- stance it was deemed an advantage, in later Talmudic times, to have at least one mumcha (authorised jurist) among the three. The Jurisdiction of the Courts. 45 presence of such a rabbin added, of course, to the local repute of the court in which he sat. It may be worth while pointing out here that, apart from the legal jurisdiction pertaining to them, these bodies performed when required certain other functions, some of them semi- religious. They could, for instance, estimate the worth of the fourth year's produce, which had to be paid to the priests ; they acted as arbitrators ; they formed a court of equity ; they could pronounce judgment in ordinary business litigation ; they could absolve an Israelite from a rash vow ; and (a rather difficult task, if the Jews of old resembled in some respects their modern representatives) they could declare the personal worth of a Hebrew when he had sworn to give an equi- valent sum to the Temple. A Synhedrin of three-and-twenty mem- bers was competent to judge all criminal cases, involving (i) capital punishment ; (2) internment in a city of refuge ; (3) imprison- ment or seclusion for life ; and (4) corporal .46 Criminal Code of the Jews. punishment. To these four classes of offences belong murder, adultery, blasphemy, idolatry, incest, manslaughter, and seduction with violence. An animal (an ox that had gored a man so that he died) was also con- demned to be slaughtered by a tribunal of three-and-twenty judges. The beast was in some sort put on trial ; because of the heavy pecuniary penalty imposed where the owner could be proved to have known the vicious propensities of the animal. The value of a life had to be estimated by the court in such cases. The Synhedrin (like the smaller courts of three) sat whenever occasion re- quired, and always en permanence on Mon- days and Thursdays. These days were se- lected for the regular administration of justice on account of their convenience to judges, suitors, and the public. On the mornings named the inhabitants of the outlying dis- tricts and suburbs came into the towns for the purpose of attending the reading of the law in public assembly. Every adult male, Jurisdiction of the Courts. 47 unless incapacitated by sickness, was present on these occasions. Here, then, was an ex- cellent opportunity for the settlement of dis- putes and the trial of offenders, But there were other reasons for the regular bi-weekly meeting of the Synhedrin. These courts of three-and-twenty members constituted the local governing body of their district or divi- sion. Their functions were important and multifarious. They estimated the amount of the taxes to be imposed ; they organised the distribution of communal charity ; they were charged with the management and adminis- tration of the public elementary schools ; they saw that weights and measures were care- fully inspected from time to time, affixing their seals to all legal standards ; they con- structed, examined, and repaired the defences of the walled towns ; they were the local highway board ; they were sanitary authori- ties ; they discharged the thousand and one duties of local government. The mode of procedure in ordinary trials 48 Criminal Code of tJie Jews. was very simple. The prosecutor attended before the Synhedrin and lodged his com- plaint ; the officer appointed by the court for that purpose sought the accused person and brought him before the tribunal. The wit- nesses were summoned and heard. Both parties then quitted the hall where the trial took place. The judges deliberated, and afterwards readmitted the prosecutor and the defendant. Judgment was then pro- nounced. No advocates were heard ; the members of the tribunal deeming it meri- torious to exercise the utmost ingenuity in order to discover mitigating facts or ex- tenuating circumstances when the law was clearly against the accused. Right of appeal existed and had to be acted upon within thirty days of the original hearing. In such cases the cause was taken to a neighbouring Synhedrin, which, from its containing a greater number of more learned and prac- tised jurists, was deemed of superior autho- rity. In all instances, whether the trial was before a full court or an ordinary tribunal of Jurisdiction of the Courts. 49 three, the reasons and arguments upon which the decision was founded had to be commu- nicated to the suitors. But, on the other hand, the fact of there having been any dissentient judges among the members was always carefully concealed. As a natural consequence the sentence pronounced was regarded as the unanimous decision of the tribunals. Dissatisfaction was thus dis- couraged, and appeals were probably, as one of the rabbins states, of infrequent occur- rence. The Great Synhedrin of Jerusalem, con- sisting of seventy-one members, was, as the supreme council of the nation, the highest court of criminal jurisdiction. This impor- tant body, and this body only, was competent to judge (i) a High Priest against whom an accusation had been preferred ; (2) a false prophet ; (3) a city given to pagan practices ; and (4) an entire tribe. In the legal adminis- tration of the Hebrews the principal duties devolving upon the grand tribunal of the 5