5 
 075
 
 CAPITAL PUNISHMENT 
 AMONG THE JEWS 
 
 A PAPER READ BEFORE THE 
 NEW YORK BOARD OF JEWISH MINISTERS 
 
 BY 
 
 REV. D. DE SOLA POOL, PH. D. 
 
 NEW YORK 
 
 BLOCH PUBLISHING COMPANY 
 1916
 
 Copyright, 1916, by 
 BLOCH PUBLISHING COMPANY
 
 CONTENTS 
 
 THE FOUR METHODS OF CAPITAL PUNISHMENT . 1 
 
 (a) Stoning 2 
 
 (b) Burning 6 
 
 (c) Beheading 9 
 
 (d) Strangulation 12 
 
 JEWISH ATTITUDE TOWARDS CAPITAL PUNISHMENT 15 
 
 RABBINICAL MODIFICATIONS 21 
 
 LEGAL RESTRICTIONS 25 
 
 PRACTISE AND THEORY 35 
 
 POST-TALMUDIC DEVELOPMENT . . 46
 
 CAPITAL PUNISHMENT 
 
 In the following essay, an attempt is made at 
 tracing the history of capital punishment among the 
 Jews. From the Biblical period onwards, there took 
 place a long and complex development of the prin- 
 ciples, the methods and the application of capital 
 punishment. 
 
 The story of this development is contained chiefly 
 in the Old and the New Testaments, Josephus, the 
 Rabbinic writings and the Responsa of the Middle 
 Ages. The following study, which is based on these 
 sources, attempts to make clear what was the nature 
 of this development. 
 
 The Four Methods of Capital Punishment 
 
 According to a saying of the Rabbis, nine hundred 
 and three different methods of death have been created 
 for man. 1 But Rabbinic jurisprudence recognised 
 only four legal methods of inflicting death as the 
 penalty for a capital crime, namely: stoning, burning, 
 decapitation and strangulation. 2 One man, Yakim (or 
 
 . 8a, with reference to Ps. Ixviii, 61. 
 2 Mishna Sanh. vii, 1.
 
 2 Capital Punishment Among the Jews 
 
 Yakom), a nephew of Jose ben Joezer (2nd cent. 
 B. C. E.), is said to have killed himself by all four 
 methods at once. He first set up a beam from which 
 he hung a noose. Then he arranged faggots at the 
 foot of the gibbet, surrounded them with stones and 
 set a sword with its blade pointing upwards in the 
 stones. He then kindled the faggots and hanged him- 
 self in the noose, the flames burned away the rope so 
 that his body fell into the fire, and at the same time on 
 to the stones and on the sword-blade. 3 
 
 (a) Stoning 
 
 In appraising the Jewish attitude towards capital 
 punishment in general, it is necessary first to examine 
 the history of these four methods of capital punish- 
 ment among the Jews. 4 The first to engage our 
 attention is STONING (Sekilah). 
 
 In Biblical and Rabbinic legislation, stoning is the 
 punishment decreed for a number of transgressions, 
 such as idolatry, Moloch worship, magic, necromancy, 
 false prophesying, Sabbath desecration, blasphemy of 
 God's Name, cursing of parent, and other crimes, 
 seventeen in all, listed in the Mishna. 6 
 
 Stoning was apparently the usual method of inflict- 
 ing the death penalty in Biblical times whenever 
 burning was not specifically called for. 6 It was 
 
 3 Gen. Rab. Ixv, 22. 
 
 4 This subject has been dealt with at length by A. Buechler, 
 Monatsschrift f. Geschichte u. Wissenschaft des Judentums, 
 1906, Vol. L. 
 
 6 Sanh. vii, 4. 
 
 6 Compare Lev. xx, 10 with Deut. xxii, 24; and Num. xv, 35 
 with Exod. xxxi, 14f, and xxxv, 2; Matt, xxv, 37; Luke 
 xiii, 34.
 
 Capital Punishment Among the Jews 3 
 
 carried out outside the camp or town or at the gate, 7 
 by the people or mob, without any other ceremony 8 
 than the casting of the first stone by the witnesses. 9 
 
 In post-Biblical times, we find that according to 
 John x, 31, "the Jews took up stones again to stone" 
 Jesus. According to Acts vii, 57f , Stephen, the proto- 
 martyr of the Church, was stoned, but whether by the 
 uprising of the mob or by judgment of the court, is not 
 clear. 10 According to Luke xx, 6, the chief priests 
 and the scribes and elders feared to suggest that John 
 the Baptist was not a prophet, because if they did so 
 "all the people will stone us." In a passage which is 
 admittedly a Christian interpolation in Josephus, we 
 are told that the Sadducean high priest Anan (62 C. E.) 
 removed James, the brother of Jesus, and some others 
 by stoning, after a semblance of a legal trial. 11 
 
 In the Rabbinic literature also, there are incidental 
 references to actual cases of stoning, which may seem 
 to imply that in the earliest Rabbinic period lapidation 
 was carried out in the simple manner described in the 
 Bible. In the Mishna, 12 it is stated that a priest who 
 ministered in the Temple in a state of ritual impurity 
 was beaten on the skull by the young priests, with 
 
 7 Lev. xxiv, 14, 23 ; Num. xv, 35f ; Deut. xvii, 5 ; xxi, 19ff ; 
 xxii, 24; Acts vii, 58. 
 
 8 Lev. xxiv, 16 ; Num. xiv, 10 ; Deut. xxi, 21 ; xxii, 21 ; I Sam. 
 xxx, 6; I Kings xii, 18; xxi, 10, 13; II Chron. x, 18; xxiv, 21; 
 Exod. xvii, 4; viii, 22; Josephus, War I. xxvii, 6; Antiq. XVI, 
 xi, 17; XVI. x, 5. 
 
 9 Deut. xvii, 7. 
 
 10 Overbeck, Apostelgeschichte, 114; J. Juster, Les Juifs dans 
 I'Empire Romain, II, 138, note 2 ; Schuerer, II, 262. 
 
 11 Antiq., XX, ix, 1; Schuerer (4th edit.), I, 581. 
 
 12 Sanh. ix, 6.
 
 4 Capital Punishment Among the Jews 
 
 blocks of wood. 13 In early Rabbinic times, the death 
 penalty by stoning was undoubtedly carried out. Rabbi 
 Eleazar ben Jacob (1st cent. C. E.) states that as an 
 exemplary measure, the Jewish court (Beth Din) in 
 Grecian days, imposed the sentence of stoning on one 
 who rode on horseback on the Sabbath. 14 Tosefta 
 Sanhedrin ix, 5, mentions a definite case of a man 
 going out to be stoned. Tradition states further that 
 Ben Satda, later wrongly identified with Jesus 15 , was 
 stoned. 16 The Beth Din in Jerusalem is also said to 
 have inflicted the death penalty by stoning for a case 
 of apparent incest and for another gross crime. 17 
 But whether any of these cases of stoning was carried 
 out in the Pharisaic method of precipitation described 
 in the Mishna Sanhedrin vi, 4, is not clear from the 
 
 18 
 
 sources. 
 
 It may be asked what basis there was for the 
 Pharisaic modification of lapidation to precipitation. 
 In a war with Edom, captive Edomites were killed by 
 being precipitated from a rock. 19 Two Jewish mothers 
 who had circumcised their children during the persecu- 
 tions of Antiochus Epiphanes are said to have been 
 killed by being hurled from the wall of the city. 20 The 
 
 13 Compare Tosefta Kelim i, 6; Josephus, War, I, xxvii, 6. 
 
 14 J. Chag. II, 14, 78a ; Sanh. 46a. 
 
 15 Tos. Sabb. 104b; Chajes in Hag or en, IV, 33-37; Zucker- 
 mandel, Gesam. Aufsaetze, II, 193. 
 
 "Sanh. 67a; Tos. Sanh. x, 11; J. Sanh. VII. 2, 2Sd top. 
 
 17 Kid. 80a; Git. 57a. 
 
 18 Buechler loc. cit., p. 691, doubts whether the method of 
 precipitation was ever legally used. 
 
 "II Chr. xxy, 12. 
 
 20 II Mace, vi, 10; but Josephus, Antiq., XII. v, 4 says that 
 they were crucified and then strangled by having their children 
 hung round their neck.
 
 Capital Punishment Among the Jews 5 
 
 false witnesses who accused Susanna were similarly 
 dealt with. 21 The gospel according to Luke relates 
 that the people of Nazareth wished to cast Jesus 
 headlong from the brow of the hill whereon their city 
 was built. 22 Precipitation was therefore a well recog- 
 nised modification of lapidation, and not a sheer 
 invention of the Rabbis. 
 
 A similar modification was very early introduced in 
 the treatment accorded to the scapegoat. Instead of 
 the scapegoat being sent forth into the wilderness, as 
 the Bible describes, 23 it was in practise precipitated 
 from a rock. Similarly, the Pharisaic tradition early 
 substituted precipitation for stoning in the case of 
 human punishment. According to a convincing 
 emendation of a Talmudic text suggested by L. 
 Ginzberg, 24 precipitation had taken the place of lapida- 
 tion at least as early as the time of R. Jochanan ben 
 Zaccai, (fl. 75 C. E.). 
 
 The Rabbis held lapidation to be the most severe of 
 the four death penalties, and precipitation was regarded 
 as a humane modification of it. The Mishna states 
 that the victim was thrown from twice a man's height, 
 i. e., about 11 feet. But if you wish to ensure a certain 
 and easy death, asks the Talmud, why not cast him 
 from a greater height? The answer is given because 
 that would lacerate the body. 25 The words "his blood 
 
 21 Susanna 62, LXX text. 
 
 22 Luke iv, 29. 
 
 23 Lev. xvi, 22. 
 
 "Students' Annual, 1914, pp. 146, 147. I gladly take this 
 opportunity of acknowledging my indebtedness to Prof. 
 Ginzberg who read this essay in manuscript and gave me 
 valuable suggestion on many points. 
 
 25 Sanh. 45a bottom.
 
 6 Capital Punishment Among the Jews 
 
 shall be on him" 26 were taken as implying that he shall 
 be so killed that the blood shall remain in him. The 
 change in method advocated by the Pharisees therefore 
 seems to have had for its purpose the desire to make 
 the death more humane, certain and speedy, and to 
 preserve the body so far as possible from being 
 mangled. The custom of giving to the one condemned 
 a wine compounded with myrrh to dull the senses, 27 
 would be another expression of this desire to rob the 
 punishment of its horror and pain. 
 
 (b) Burning 
 
 The second death penalty, that of BURNING 
 (Serefah), is prescribed by the Biblical law for a 
 priest's daughter who commits adultery, and for the 
 crime of incest with mother and daughter. 28 The house 
 of the guilty may also have been burnt. 29 There is no 
 reason to doubt that this punishment in Biblical times 
 involved the actual burning of the living victim. 30 
 
 In post-Biblical times, we find that on March 13, 
 4 B. C. E., Herod burnt alive Matthias and his com- 
 panions who had pulled down the golden eagle set up 
 over the gate of the Temple. 31 But this was the act of 
 a despotic monarch and not of a court of law. Josephus 
 reports about himself that the Galilean mob regarded 
 
 26 Lev. xx, 9, 11, 12, 13, 16, 27. 
 
 27 Sanh. 43a; Mark xv, 23; Matt, xxvii, 34; Prov. xxxi, 6. 
 
 28 Lev. xxi, 9; xx, 14; Cf. Gen. xxxviii, 24 (Tamar) and 
 Josh, vii, 15, 25 (Achan). 
 
 29 Jud. xii, 14, 15; Josh, vii, 15, 24; Josephus, War, II. xxi, 
 3, 7. 
 
 30 Josephus, Antiq., IV, viii, 23, to Levit. xxi, 9. Compare 
 Dan. iii, 6. 
 
 31 Josephus, Antiq., XVII, vi, 4; War, I, xxxiii, 4.
 
 Capital Punishment Among the Jews 7 
 
 him as a traitor, and some cried out to stone the traitor 
 and others to burn him. 32 This also would have been 
 the act of a passionate populace in wartime, and not a 
 legally imposed punishment. But there is one well 
 attested instance in early Rabbinic times of an actual 
 burning by decree of a court of law. This was re- 
 ported by Rabbi Eleazar ben Zadok (fl. c. 100 C. E.), 
 who said that as a young child he had seen the 
 adulterous daughter of a priest bound around with 
 vine branches and burnt. 33 His fellow Rabbis, repre- 
 senting the Pharisaic tradition, declared that such a 
 course of action involving a literal burning, could have 
 been carried out only by an unlearned court (Mishna), 
 or, according to R. Joseph, by a Sadducean court. 34 
 The Book of Jubilees, which is also Sadducean in its 
 Halacha, prescribes burning for the marriage of a 
 Jewess with a non-Jew, for adultery and incest. 35 
 
 But the Pharisaic tradition, as is well known, 
 mitigated the severity of the punishment by changing 
 it into strangulation followed by a slight, almost 
 symbolic burning of the throat and inward parts. 88 
 The reasons for the change of method are apparently 
 the same as in the case of stoning, first, the desire to 
 rob the death of its pain 37 , and secondly, to avoid 
 marring the body. 
 
 **Wa,r, II, xxi, 3. 
 
 33 Mishna Sanh. vii, 2; Tos. Sanh. ix, 11; J. Sanh. VII, 24b; 
 B. Sanh. 52b. 
 
 3 *Sanh. 52b. 
 
 35 Jubilees xxx, 7 ; xx, 4 ; xli, 25, 26. For the Pharisaic view 
 of the application of this penalty, see Mishna Sanh. ix, 1. 
 
 36 Mishna Sanh. vii, 2. R. Jehudah while upholding this 
 method suggests a modification of the procedure. 
 
 "Tos. Sanh. ix, 11.
 
 8 Capital Punishment Among the Jews 
 
 This latter reason is emphasized in the statement of 
 Rab Mathna in the Talmud 38 , that the modification in 
 the method was approved so that the breath of life 
 should be burnt out and the body preserved, as was 
 supposed to have been the case with the sons of 
 Korah. 89 Rabbi Eleazar adduces the same reason, 
 referring to the case of the sons of Aaron. 40 The 
 Tannaitic tradition held that Nadab and Abihu met 
 their death through two narrow tongues of flame 
 coming forth from the holy of holies, each dividing 
 into two and entering into the nostrils of the two men, 
 thus burning out the breath of life and leaving their 
 clothes and their bodies uninjured. 41 Similarly, the 
 Syriac Apocalypse of Baruch says that Sennacherib's 
 army was burnt by God only within their bodies. 42 
 This statement reflects the Midrashic tradition that 
 because Shem covered his father's nakedness, the 
 clothing of his Jewish descendants Nadab and Abihu, 
 and of his non- Jewish descendants composing Senna- 
 cherib's army, was not burnt when the fire of the Lord 
 burnt out their lives. 43 
 
 In all this is emphasized the Pharisaic desire to 
 preserve the body of the victim uninjured. According 
 to R. Joseph, who declared that a court which sentenced 
 
 38 Sanh. 52a. 
 
 39 Num. xvi, 35. 
 
 <Lev. x, 2, 6. Sifra ed. Weiss ibid., 45c, 34; 46a, 41; 
 Tosafoth Sanh. 52a. 
 
 41 Sanh. 52a; Sifra 45c, 34. But contrast Josephus Antiq., 
 Ill, viii, 7, who says that their faces and breasts were burnt. 
 
 42 Baruch Ixiii, 8 ; Susanna 62, LXX text, says that fire from 
 heaven burnt the false witnesses after they had been 
 precipitated. 
 
 * 3 Lekach Tob to Noach IX, 23; Tanhuma Noach 21, p. 25b.
 
 Capital Punishment Among the Jews 9 
 
 to an actual burning must have been a Sadducean 
 court, 4 * this consideration was not of weight with the 
 Sadducees. It has been suggested therefore, that this 
 desire of the Pharisees may have been connected with 
 their belief in the resurrection of the body, a belief 
 rejected by the Sadducees. 45 
 
 The method of burning advocated by the Pharisees 
 does not seem to go back beyond the Christian era. 
 The incident of the actual burning of the priest's 
 daughter, witnessed by Rabbi Eleazar ben Zadok 
 shortly before the fall of the Temple, might be inter- 
 preted as implying that the change in method was then 
 taking place. 46 There is no mention in the sources of a 
 case of burning being carried out in the Pharisaic 
 manner, although the full details preserved in the 
 Mishna, describing the application of the method, 
 would imply that the method had been in use. But 
 the number of cases of the possible application of the 
 penalty was limited, and a burning must have been a 
 rare occurrence. 
 
 (c) Beheading 
 
 The third legal capital punishment recognised by 
 the Rabbis is BEHEADING (Hereg). Death by the 
 sword, although recognized in a blood feud and often 
 used by kings, 47 is nowhere mentioned in the Bible as 
 
 44 Sanh 52b 
 
 45 N. Bruell, Beth Talmud, 7ff, quoted by Buechler /. c. 558, 
 note 1. 
 
 46 Notice also the contradiction between Josephus' account 
 of the burning of Nadab and Abihu and the Pharisaic tradition 
 referred to above, note 41. 
 
 * 7 E. g. II Kings x, 7.
 
 10 Capital Punishment Among the Jews 
 
 a penalty ordered by law, except for the apostasy of a 
 whole community. 48 According to the Mishna, 49 
 murder also is punished by beheading. The Boethu- 
 sians, eo the Samaritans, 61 Philo, 52 Jesus, 53 Josephus, 54 
 the Book of Jubilees, 65 Eliezer ben Hyrcanus, 
 (1st cent. C. E.), 68 like the later Karaites, 57 all agree 
 in recognizing the Biblical talio as the punishment for 
 murder. This does not necessarily imply that the 
 method of inflicting the death penalty had to be the 
 same as the method used by the murderer. It implies 
 only that murder was punishable by death. 
 
 The Pharisaic ruling that the death penalty for 
 murder was inflicted by decapitation is not disputed 
 by any of the Rabbis. 58 But the method of the 
 execution is debated. The Mishna states that the 
 victim's head was cut off at the throat with a sword, 
 as the (Roman) government carried out an execution. 59 
 R. Jehudah (135-220 C. E.) objected that this jus gladii 
 would disfigure the victim. 60 He therefore advocated, 
 that instead of the old method recognized by the 
 Rabbinical tradition, the murderer's head should be 
 
 48 Deut. xiii, 13-16. 
 
 49 Sanh. ix, 1 ; Mechilta to Exod. xxi, 12. 
 50 Scholion to Megillath Taanith 4. 
 
 51 Revel, Jew. Quart. Rev., New Series, III, 364, note 86. 
 52 Ritter, Philo und die Halacha, 18ff. 
 53 Matt. v, 38; see also xxvi, 52. 
 **Antiq., IV, viii, 35. 
 65 Jubilees iv, 32. 
 86 Baba Kamma 84a. 
 
 "Revel, Jew. Quart. Rev., New Series, III, 364-366. 
 68 Mechilta 83b to Ex. xxi, 20. 
 69 Sanh. vii, 3. 
 
 60 Similarly Baba Bathra 8b, Death by the sword is worse 
 than a natural death because it disfigures.
 
 Capital Punishment Among the Jews 11 
 
 placed on a block and chopped off at the neck with an 
 ax. The Rabbis protested that this method of be- 
 heading advocated by R. Jehudah would be far more 
 shameful to the victim than that common to the Jews 
 and the Romans. R. Jehudah admitted the force of 
 their objection, but defended the method advocated by 
 him because it was not the same as Roman custom. 
 The Talmud then proceeds to eliminate other possible 
 methods of killing by the sword, such as piercing or 
 cleaving the body, by quoting the principle of the 
 golden rule "Thou shalt love thy neighbor as thyself." 61 
 Therefore we must choose for him the easiest death. 
 The comparison is then brought with the heifer that 
 was killed to atone for bloodshed. 62 As the heifer, 
 the substitute for the unknown murderer, was killed 
 by having its throat cut, so the known human murderer 
 had his throat cut and not his head chopped off at the 
 neck, the golden rule again being quoted as authority. 68 
 In this case also the sources do not mention an 
 actual case of decapitation being carried out by a 
 Jewish court. According to the New Testament, 
 Herod Antipas had John the Baptist killed by be- 
 heading, 84 and Agrippa I. caused James the apostle, 
 the brother of John, to be killed by the sword. 68 But 
 
 61 Lev. xix, 18. 
 
 62 Deut. xxi. 
 
 63 Sanh. 52b; Mechilta 83b to Exod. xxi, 20; J. Sanh. VII, 
 24b. Also Genesis Rabba 44 beginning, and the legend of the 
 neck of Moses becoming hard as marble before the sword of 
 Pharaoh. J. Berachoth, ix, 1 (where the exact phrase used by 
 the Mishna occurs) ; Exod. Rab. 1 to Exod. ii, 15. 
 
 64 Matt. xiv, 10 ; Mark vi, 27 ; Luke ix, 9. Cf . the interpola- 
 tion in Josephus, Antiq., XVIII, v, 2. 
 
 65 Acts xii, 2. Cf. Rev. xx, 4 of the Christian martyrs.
 
 12 Capital Punishment Among the Jews 
 
 neither of these executions was ordered by a Jewish 
 court of law. 
 
 (d) Strangulation 
 
 The fourth method of capital punishment recognised 
 in Pharisaic tradition is STRANGULATION (Henek). 
 
 Strangulation does not appear in the Bible as a 
 recognised legal method of punishment. The only 
 Biblical instance of death by strangulation is the 
 suicide of Ahitophel. 66 
 
 The Mishna 67 specifies strangulation as the punish- 
 ment for the son who purposely wounds his parent, 
 for the false prophet, for the one who prophesies in 
 the name of idolatry, for stealing a Jew, for adultery 
 with a married woman, seducing a priest's betrothed 
 or married daughter, etc. It was the method of capital 
 punishment preferred by the Rabbis; for R. Yoshia 
 said that wherever the Bible does not specify the 
 method of carrying out the capital sentence, strangula- 
 tion should be adopted because it is the least severe 
 measure. Rabbi Jonathan also said that strangulation 
 should be adopted, even though in his judgment 
 strangling is not an easier method of death than other 
 methods. 68 The reason for this preference seems to 
 be because of the four legally recognized methods of 
 capital punishment, strangulation as it was carried 
 out was the only one which left the body practically 
 uninjured. The condemned man was to be sunk up to 
 
 66 II Sam. xvii, 23; Cf. I Kings xx, 31 "ropes upon our 
 heads." Tobit ii, 3 (Strangulation). 
 67 Sanh. xi, 1. 
 8 Sanh. 52b bottom; Sifra 92a, 11.
 
 Capital Punishment Among the Jews 13 
 
 his knees in mud and then strangled by having a hard 
 cloth which was wrapped in a soft one twisted around 
 his neck and pulled in opposite directions until the 
 suffocated victim died. 69 Strangulation therefore 
 satisfied the Rabbinic desire to avoid marring the body 
 far better than did stoning, burning or decapitation. 
 R. Jehudah explains that the death penalty as inflicted 
 by man should be like that inflicted by God in not 
 injuring the human body. 70 This consideration it was, 
 also, as we have seen, that played a large part in in- 
 ducing the Rabbis to mitigate the method of burning, 
 by reducing it to strangulation followed by an almost 
 symbolical burning. 
 
 Again, in this case, the sources do not mention any 
 definite case in which the punishment of strangulation 
 was actually carried out as a result of a court judg- 
 ment. But it is clear that strangulation induced in 
 the older manner of hanging was not infrequently 
 consummated in the earlier Rabbinic period. Raguel's 
 daughter Sarah "thought to have hanged herself." 71 A 
 proverbial remark in the mouth of Rabbi Akiba (d. c. 
 132 C. E.), 'if you wish to strangle yourself, hang 
 yourself on a high tree', 72 would indicate that hanging 
 was a well recognised method of death. According to 
 one source, Judas Iscariot hanged himself. 73 It is 
 reported by Rabbi Eleazar, 74 that Simon ben Shetach 
 (fl. 80 B. C. E.) hanged women in Ascalon. But in 
 
 69 Mishna Sanh. vii, 3. 
 
 Sanh. 52b; Sifra 92a, 11. 
 
 71 Tobit iii, 10. 
 
 72 Pes. 112a bottom; cf. Semachoth II, 3. 
 
 73 Matt. xxvii, 5. But see the different story in Acts i, 18. 
 
 74 Mishna Sanh. vi, 4.
 
 14 Capital Punishment Among the Jews 
 
 this case the question arises whether they were hanged 
 alive or hanged as a reproach after they had been 
 otherwise killed. 
 
 Hanging, according to Biblical custom, was meted 
 out to the dead body of one who had been otherwise 
 killed. The order of the words in Deut. xxi, 22, 23 
 implies, that first the malefactor has been put to death, 
 and then as an added indignity his corpse is suspended. 
 The same treatment of hanging the corpse was meted 
 out to the murderers of Ishbosheth. 75 Similarly, Joseph 
 tells the chief baker that in three days Pharaoh will 
 take off his head and then hang his dead body. 76 The 
 dead bodies of Saul and Jonathan were hung up by the 
 Philistines. 77 The five kings were first killed by 
 Joshua and then hanged. 78 A momentary hanging of 
 the corpse was recognised by the Rabbis in the case of 
 the male idolater or blasphemer. 79 From these 
 examples of Jewish custom and from the context in 
 the Mishna and Talmuds, it becomes clear, that the 
 witchcraft victims of Simon ben Shetach's zeal, were 
 hanged in ignominy after the death penalty had been 
 otherwise inflicted. In any case, the discussion in the 
 Mishna and the Talmud 80 shows that the action of 
 Simon ben Shetach was an exceptional action, from 
 which no conclusion as to the regular course of law 
 could be drawn. There is consequently no evidence of 
 
 75 II Sam. iv, 12. 
 76 Gen. xl, 19. 
 77 II Sam. xxi, 12. 
 
 78 Josh. x, 26. But in Persia, the victim may have been 
 hanged alive, as the book of Esther seems to imply. 
 79 Mishna Sanh. vi, 4; Sanh. 46b; J. Chag. II, 78a. 
 80 Sanh. 46b.
 
 Capital Punishment Among the Jews 15 
 
 hanging alive ever having been carried out by a judicial 
 sentence of the Rabbis. It need scarcely be added that 
 the Roman punishment of crucifixion was a penalty 
 unknown to Jewish law and abhorrent to Jewish 
 feeling. The inhuman savageness shown by Alexander 
 Jannaeus in crucifying his prisoners of war was no 
 more a legally recognised form of capital punishment 
 than was his cutting the throats of the wives and 
 children before the eyes of the crucified victims. 81 
 
 Jewish Attitude Towards Capital Punishment 
 
 Having summarized the history of the four methods 
 of legal capital punishment recognised by the Jews, 
 we are now in a position to review more broadly the 
 question of the Jewish attitude towards capital 
 punishment. 
 
 The Hebrew Bible undoubtedly stands for the prin- 
 ciple of capital punishment, as has clearly emerged 
 from the detailed consideration of the particular 
 methods of inflicting the death penalty set forth above. 
 In Biblical times, when the organization of Jewish 
 society was comparatively simple, retributive justice 
 brooked few of the law's delays. In the simplest and 
 most rapid manner, the avenger of blood exacted the 
 penalty of life for life. Society protected itself by a 
 swiftly effective punishment. 
 
 But the Bible recognises in capital punishment also 
 a deterrent character and an expiatory character, in 
 addition to its retributive character. It holds capital 
 punishment to be a necessity as a deterrent. The phrases 
 
 81 Josephus, War, I, iv, 6.
 
 16 Capital Punishment Among the Jews 
 
 "and thou shalt remove the evil from thy midst," "and 
 Israel shall hear and understand and no more do this 
 evil," which occur many times, coupled with the 
 admonition to impose capital punishment, show that 
 this preventive purpose was closely associated with the 
 imposition of the death penalty. Malicious false 
 witnesses had to be treated as they would have treated 
 the one against whom they had testified, so that the 
 public should take warning. 82 
 
 The Bible also teaches explicitly that capital punish- 
 ment is the just punishment for murder, in order to 
 atone for the pollution of the land. 83 No pity was to 
 be shown to the wilful murderer. 84 The right of 
 sanctuary granted to the one guilty of manslaughter, 
 was not granted to the murderer, 85 and the crime of 
 shedding innocent blood had to be atoned for in order 
 to cleanse the sacred community of Israel. 86 
 
 Yet the old Testament teaching of justice is tem- 
 pered by mercy. "But if the wicked turn from all his 
 sins ... he shall surely live, he shall not die . . . Have I 
 any pleasure in the death of the wicked ? saith the Lord 
 God ; and not rather that he should turn from his way 
 and live." 87 It was a duty to try to save those going to 
 death. 88 
 
 The New Testament also admits the right of society 
 
 82 Deut. xix, 16-21. Cf. also Deut. xiii, 12, xvii, 13, xxi, 21 of 
 the rebellious son, where the deterrent nature of the punish- 
 ment is again specifically mentioned. 
 
 83 Num. xxxv, 33 ; Deut. xix, 13. 
 
 8 *Deut. xix, 11-13. 
 
 85 Exod. xxi, 14; Num. xxxv, 11, 12. 
 
 86 Exod. xxi, 13. 
 
 87 Ezek. xviii, 21-23; xxxiii, 14-16, 19. 
 
 88 Prov. xxiv, 11-13.
 
 Capital Punishment Among the Jews 17 
 
 to exact capital punishment. 89 We have seen that 
 Philo, Josephus 90 and the apocryphal and apocalyptic 
 books also do not doubt the reasonableness and neces- 
 sity of capital punishment. In the last pre-Christian 
 century, the Jewish people, particularly the Sadducees 
 who were in the ascendant, still followed the Bible in 
 their maintenance of the theory and the practise of 
 capital punishment. The letter and the spirit of the 
 Biblical laws governed Jewish practise. But in the first 
 post-Christian centuries, these teachings of the Bible 
 were modified in many directions. 
 
 It may be safely affirmed that the Rabbis did not 
 question the right of society to inflict capital punish- 
 ment, even though they pictured God as grieving over 
 the death of the wicked. 91 In the Mishna, they 
 enumerated thirty-seven crimes (nineteen of morals, 
 twelve of religious law, three against parents and three 
 assaults), which they held to be punishable by death. 
 In commenting on the Biblical warning "thine eye 
 shall not spare the wilful murderer," they say 'thou 
 shalt not say wherefore should I punish murder by 
 murder. The one whom thou knowest indubitably to 
 be guilty of a premeditated murder thou shalt not pity 
 nor spare.' 92 The sternness of the capital sentence was 
 recognised by the Rabbis as being in the best interests 
 both of the criminal and of society. 93 "When the 
 
 89 Matt. xy, 4; xxvi, 52; John xix, 10, 11; Acts xxv, 11; 
 Romans xiii, 1-14. 
 
 s Cont. Apion., II, 31, "the punishment for most sinners is 
 death." Antiq., IV, viii, 35. 
 
 91 Mishna Sanh. vi, 5. 
 
 92 Sifre to Deut. xix, 13. Cf. Deut. xiii, 9 of the seducer to 
 idolatry. 
 
 93 Mishna Sanh. viii, 5.
 
 18 Capital Punishment Among the Jews 
 
 wicked perish there is joyful shouting," was quoted in 
 justifying the death penalty, to convince those who 
 hesitated to help bring a capital offender to justice. 94 
 R. Akiba declared that so long as sinners such as 
 Achan remain alive, the Divine anger rests upon the 
 community. But when they are put to death, the 
 Divine favor is restored. 95 The noxious thorns in the 
 garden of humanity must be destroyed. 96 When Akiba 
 (d. c. 132 C. E.), claimed that had he been a member 
 of the Sanhedrin, a death sentence for murder or 
 immorality would never have been imposed, Rabbi 
 Simon ben Gamliel retorted "had you been a member 
 of the Sanhedrin, you would have been responsible for 
 the increase of murders." 97 
 
 The Rabbis also approved of the preventive char- 
 acter of the Biblical death penalty. For instance, the 
 death penalty for the rebellious, gluttonous son, is 
 regarded by them not as a punishment commensurate 
 with the wrong that the son may have committed, but 
 as a preventive measure, necessary for society and 
 necessary for the criminal. In explaining why the son 
 must pay the penalty of death even though he has not 
 spilled blood nor committed any major offence, they 
 say that the Torah looks ahead. Let him die before he 
 has incurred graver guilt ; otherwise, he will sink lower 
 and lower until finally he commits a capital offence. 
 Therefore he should be put out of the way as a pre- 
 
 9 *Prov. xi, 10; Mishna Sanh. iv, 5. 
 
 95 Mishna Sanh. x, 6 end, with reference to Josh, vii, 1 and 
 vii, 26. 
 
 96 Genesis Rabba 44 to Gen. xv, 1. 
 97 Mishna Mace, i, 10; Marc. 7a, Tosafoth.
 
 Capital Punishment Among the Jews 19 
 
 ventive measure. 98 Although we immediately see the 
 danger lurking in such a principle of preventive pun- 
 ishment, the recognition of this principle by the Rabbis, 
 is further evidence that in theory they approved of the 
 death penalty. 
 
 Furthermore, the Rabbis approved of a fitting 
 retribution. Biblical justice demands that the punish- 
 ment correspond with the crime. He who digs a pit 
 should fall into it." The Psalmist prays that God may 
 repay the wicked according to the works of their 
 hands. 100 The Rabbis recognise this principle of 
 retribution in kind in every phase of life. 101 The 
 principle underlying the talio is that which they call 
 "measure for measure." 102 Bloodshed, according to 
 this principle, could be expiated only by bloodshed. 108 
 
 The Rabbis also saw in the death penalty an expia- 
 tion of the sin that had been committed. This supreme 
 expiation was religious in character, and was brought 
 into connection with the Temple and its sacrificial 
 worship. Thus it is stated that only so long as the 
 altar stood, 104 or the priest officiated, 105 could the 
 
 98 Mishna Sanh. viii, 5; Sanh. 72a; Sifre to Deut. xxi, 18-21. 
 It must be remembered that this case is purely theoretic. See 
 text to notes 214 and 215. 
 
 "Ps. vii, 16f ; Eccl. x, 8f ; Prov. xxvi, 27; Ben Sira xxvii, 26. 
 
 100 Ps. xxviii, 4; Isa. iii, 10, 11; Job xxxiv, 11; Obad. IS; 
 Lev. xxiv, 19; Prov. xxiv, 29; Jer. 1, 29. 
 
 101 Aboth ii, 7; Sota i, 8; Num. Rab. xviii, 18; Sota 8a, lla; 
 Pes. 28a; Baba Kamma 92a. 
 
 102 Sanh. lOOa, bottom ; Mishna Sota i, 7. 
 
 103 Gen. ix, 6, which is not necessarily meant originally as a 
 legal principle, but which is used by the Rabbis as such, 
 Sanh. 57b. Cf . Matt, xxvi, 52 ; Sanh. 72b. 
 
 104 Mechilta de R. Simon, p. 126, with reference to Exod. 
 xxi, 14. 
 
 105 Sanh. 52a with reference to Deut. xyii, 9; Maimonides 
 Hilch. Sanh. xiv, 11.
 
 20 Capital Punishment Among the Jews 
 
 death penalty be carried out. 106 According to the 
 opinion of R. Akiba, 107 a capital sentence on "a defiant 
 elder" could not be consummated outside of Jerusalem, 
 nor even in Jabneh by the great Sanhedrin, while the 
 Temple still stood; but he should be brought to 
 Jerusalem and put to death on one of the middle days 
 of the next festival when the city and the Temple 
 were thronged with worshippers. Those condemned 
 to death were given the opportunity to confess their 
 sins when within ten cubits of the place of execution, 
 the confession opening for them the gates of the 
 future world. 108 It is related of one condemned man 
 that when bidden confess he prayed "May my death be 
 an atonement for all my sins" . . , 109 If the condemned 
 man was unable to confess fully, he was bidden say 
 "May my death be an atonement for all my sins." 110 
 
 These four considerations, (a) the plain command 
 of the written word of the Torah, (b) the recognition 
 of the deterrent and preventive value of capital 
 punishment, (c) the claims of just retribution and (d) 
 the recognition of the expiatory character of the death 
 penalty, leave it beyond doubt that the Rabbis approved 
 of the theory of capital punishment. They accepted 
 without question the teachings of the Torah, implying 
 the justifiability of imposing the death penalty. At the 
 same time, numberless passages testify to the sacred- 
 
 106 The Jewish courts outside of Palestine were considered 
 as having jurisdiction in capital cases only so long as the 
 great Sanhedrin continued to hold its sessions in the special 
 hall of the Temple. Mishna Mace, i, 10. 
 
 107 Mishna Sanh. xi, 4 in connection with Deut. xvii, 13. 
 
 108 Mishna Sanh. vi, 2; Sifre Zutta to Num. v, 6. 
 
 109 Tos. Sanh. ix, 5. 
 
 110 Mishna Sanh. vi, 2.
 
 Capital Punishment Among the Jews 21 
 
 ness in which they held human life, 111 and many 
 passages prove that they had a vivid sense of the 
 irrevocability of a consummated death sentence. To 
 put a man to death wrongfully is as though one 
 destroyed the whole world. 112 
 
 Rabbinical Modifications 
 
 But it is no less clear that the Rabbis did not favor 
 capital punishment in practise. It is true, as will be 
 shown later, that after the fall of the Temple in 
 70 C. E., they no longer had the right of imposing the 
 death penalty. But we possess their theory of what 
 their practise would have been had they had the 
 opportunity of exercising it, and this theory tends 
 altogether in the direction of modifying capital pun- 
 ishment to its virtual abolition. 
 
 The problem with which the Rabbis grappled was 
 how could the death penalty which was demanded by 
 the Law be mitigated in the- face of the explicit words 
 of the Torah. Commutation of the death sentence by 
 a fine or by wergild could not be considered where the 
 Bible did not specify the option of a ransom {Kofer}. 
 The Torah expressly prohibits modifying into a fine 
 the death penalty which was the due of the murderer. 113 
 The Bible furnishes no precedent for commuting the 
 death penalty to one of deportation. Exile involved 
 the banishment of the Jew from the full exercise of 
 
 1:11 Their use of the phrase "worthy of death" applied to such 
 mild offenders as the scholar with stained clothing (Sabb. 
 104a), is naturally to be understood as an emphatic hyperbole. 
 
 112 E. g. Mishna Sanh. iv, 5 ; Tos. Sanh. ix, 5 ; Mace. 5b. 
 
 3 Num. xxxv, 31, 32; Exod. xxi, 30, 32.
 
 22 Capital Punishment Among the Jews 
 
 Judaism. Herod was condemned for selling law- 
 breakers out of the kingdom. "For slavery to foreigners 
 and such as did not live after the manner of the Jews, 
 and necessity to do whatever such men should com- 
 mand, was an offence against our religion rather than 
 a punishment to such as were found to have offended, 
 such a punishment being avoided in our original 
 laws," the Bible. 114 The cities of refuge no longer 
 had asylum power. Exile was considered a more 
 grievous punishment than death by the sword or by 
 starvation and was regarded as harder even than death, 
 itself the hardest of the ten hardest things created in 
 the world. 115 Enslavement to Jews was specified by 
 the Bible as a legitimate punishment only in certain 
 cases. 116 Similarly, both the application and the 
 severity of scourging were limited. 117 
 
 Prisons in Jewish antiquity were used usually as a 
 ward house in which the accused was detained until 
 sentence could be pronounced. 118 But sometimes the 
 prison seems to have been used also as a punitive 
 institution. 119 In one instance, the principle of com- 
 muting a death penalty to a sentence of life imprison- 
 
 114 Josephus Antiq., XVI, i, 1. Compare I Sam. xxvi, 19. 
 
 115 Baba Bathra 8b, lOa. 
 
 116 Exod. xxii, 2; II Kings iv, 1; Josephus Antiq., XVI, i, 1. 
 
 117 Lev. xix, 20; Deut. xxii, 18; xxv, 3; II Cor. xi, 24; Luke 
 xxiii, IS, 16, 22; Josephus Antiq., IV, viii, 21; XIII, x, 6; 
 Mace, iii, 1 seqq., 15. But see Maimonides Sanh. 19, where 
 among the two hundred and seven cases for which flagellation 
 is the legal punishment, eighteen cases are enumerated in 
 which flagellation is imposed on the one deserving death 
 "from the hands of Heaven." 
 
 118 Lev. xxiv, 12; Num. xv, 34; Acts iv, 3; xii, 4; xxii, 19; 
 Mechilta Mishpatim VI, p. 83a; Schechter, Sectaries, p. 12, 
 11. 2-6; Sulzberger, Jew. Quart. Rev., 1914-15, V, 598-604. 
 
 Ezra vii, 26.
 
 Capital Punishment Among the Jews 23 
 
 ment is recognised. The Mishna prescribes 120 that 
 when a man has twice committed a crime for which 
 excision is the penalty and he has received the lash 
 twice, on his committing this crime a third time, he is 
 imprisoned and fed on barley until he bursts. Or 
 when one has committed a murder and there are no 
 witnesses to condemn him, he is imprisoned and fed 
 on frugal fare of bread and water. 121 In other words, 
 when a murder has been committed and it is certain 
 that the accused man was the murderer, but owing to 
 legal technicalities, 122 it is impossible legally to prove 
 his guilt; or if the circumstantial evidence is 
 thoroughly convincing, 123 the Rabbis felt that it would 
 be dangerous to society and against all principles of 
 justice to allow such a known murderer to go free. In 
 any of these cases, he should be imprisoned in a den 
 of the height or length of a man and fed in such a 
 manner as to bring about his early death. This seems 
 to be the only passage in Rabbinical literature in which 
 imprisonment is spoken of as a possible mitigation of 
 the immediate death penalty. 
 
 From one passage 12 * it would seem that in later 
 Rabbinic times, (c. 350 C. E.), when the penalty of 
 death for murder could no longer be imposed by the 
 Jewish court, it was recommended that the death 
 sentence be commuted into one of blinding the mur- 
 
 120 Sanh. ix, 5. 
 
 121 Cf. I Kings xxii, 27. 
 
 122 Either the witnesses were separated and not together, 
 (Rab), or the witnesses had not warned the murderer, 
 (Samuel), or they had tripped up in giving evidence, (Abimi). 
 
 123 J. Sanh. ix, 5. 
 
 124 Sanh. 27a bottom.
 
 24 Capital Punishment Among the Jews 
 
 derer. When it was reported that Bar Chama had 
 committed a murder, the Exilarch bade Rab Abba (or 
 Acha) bar Jacob investigate the case. If it proved that 
 Bar Chama was guilty, his eyes should be put out. 125 
 But this passage stands alone, and does not allow us 
 to draw any conclusion as to a general practise. More- 
 over the expression "to put out his eyes" may possibly 
 be figurative, meaning imposing a fine or taking away 
 authority. 126 
 
 We see, therefore, that the necessity of adhering to 
 the express commands of the Torah prohibited the 
 Rabbis from commuting a death sentence into scourg- 
 ing, imprisonment, blinding or any other kind of 
 mutilation, exile, enslavement, a fine or any other 
 punishment. The exact words of the Torah had to be 
 upheld. 
 
 Therefore, while rigidly maintaining the Biblical 
 principle of capital punishment, the Rabbis availed 
 themselves of their right to modify the method of 
 executing the death sentence. If they upheld the death 
 penalty, there was nothing to prevent their mitigating 
 the severity of its application in every way possible. 
 We have already seen how stoning was modified in 
 practise to precipitation, and burning modified to 
 strangulation followed by a nominal burning. Our 
 consideration showed that these changes in method 
 
 i 2B The blind is one of the four classes (poor, leper, blind, 
 childless), who are considered as dead. Nedarim 62b. 
 Practically, the one blinded is rendered harmless for the 
 future. 
 
 126 Rashi ad loc. Kohut's Aruch ns . See also Peah viii, 9 
 of the unjust judge, "until his eyes grow dim," with reference 
 to Exod. xxiii, 8, Deut. xvi, 19.
 
 Capital Punishment Among the Jews 25 
 
 apparently came about in order to secure the easiest 
 and most humane methods of death, (since according 
 to the golden rule even the condemned criminal is 
 one's brother), and in order to spare the body, so far 
 as possible, all mutilation or disfigurement. The 
 general principle governing the lightening of the 
 methods of death was that wherever the Torah does 
 not specify which method of death is to be employed, 
 the easiest and most humane method is to be used. 127 
 
 Legal Restrictions 
 
 But the most thoroughgoing modification of the 
 system of capital punishment was not brought about 
 through change in the methods of imposing the death 
 penalty, but through surrounding the accused with so 
 many legal safeguards that it became virtually im- 
 possible ever to impose a death sentence. 
 
 The law limited the right of trying capital cases to the 
 high tribunal of twenty-three, not even the king having 
 the right to put to death other than through the San- 
 hedrin. 128 According to Rabbinical tradition, one very 
 large class of capital cases was taken out of the juris- 
 diction of any human court, namely those in which the 
 Bible stipulates Kareth or Excision as the punishment. 
 This ruling at one stroke absolved the Rabbinical 
 courts from the obligation of imposing the death 
 sentence in a large number of cases. 
 
 In many passages in the Pentateuch it is stated that 
 the one committing certain transgressions "will be cut 
 
 i2*Sifra 92a > 11; J- Sanh. VII, 24b; Sanh. S2b, bottom. 
 128 Josephus, Antiq., XIV, ix, 3; Mishna Sanh. ii, 2.
 
 26 Capital Punishment Among the Jews 
 
 off from his kinsfolk." 129 Modern Biblical scholars 
 understand the phrase as referring to the imposition of 
 the death penalty by the court. The Karaites also 
 understood Kareth in this sense, through a comparison 
 of Exod. xxxi, 14b with the parallel passages xxxi, 
 14a, 15 and Num. xv, 35. The one passage prescribes 
 Kareth, the others prescribe death as the punishment 
 for Sabbath profanation. Similarly Kareth in Lev. 
 xx, 3 is the equivalent of stoning, the punishment 
 designated in the preceding verse for Moloch worship ; 
 and Kareth for blasphemy in Num. xv, 30 is the 
 equivalent of stoning mentioned as the punishment for 
 the same crime in Lev. xxiv, 14. The fate of Achan, 130 
 of Naboth, 131 and of the adulteress, 132 would seem to 
 show that the whole family of the convicted person 
 could judicially be put to death. In some cases, 133 the 
 death penalty is specified as well as the penalty of 
 Kareth. 
 
 None the less, the Rabbis consistently understand 
 Kareth to be not a death penalty inflicted by man but 
 a punishment left in the hands of Heaven. Thus the 
 Rabbis interpret Kareth specifically as dying child- 
 less, 134 or as dying at 50 years, or, according to Raba, 
 between 50 and 60 years, before completing the other- 
 wise destined span, 135 or as the cutting off of the soul 
 
 129 Usually translated "cut off from his people." But the 
 Hebrew term amav is plural and seems to mean 'kinsfolk' 
 rather than 'people.' Gen. xvii, 14; Exod. xii, 15, 19; 
 xxx, 33, 38; Lev. vii, 20f, 25, 27; xvii, 4, 9, 10, 14; xx, 6; 
 xxii, 3 ; Num. xix, 13, 20, etc., etc. 
 
 130 Josh. vii, 24f. 
 
 131 I Kings xxi, 3 ; II Kings ix, 26. 
 
 132 Ezek. xxiii, 47; Cf. also II Kings xxv, 7; Num. xvi, 32. 
 
 133 E. g. Exod. xxxi, 14; Lev. xviii, 7, 8, 15, 20, 23, 29.
 
 Capital Punishment Among the Jews 27 
 
 in the future life. 136 For this interpretation of Kareth 
 as a punishment by Heaven would speak the personal 
 pronoun in the phrase, "I will cut off," the active form 
 sometimes used. 137 For this would also speak the 
 passages wherein the death penalty is threatened as well 
 as Kareth, usually adduced as favoring the other inter- 
 pretation of Kareth, if we understand them, as we 
 well may, as threatening an alternative, either the 
 death penalty by the court or Kareth by God. That 
 this may be the meaning is clear from a careful reading 
 of Lev. x, 1-5, wherein the Moloch worshipper is 
 threatened with death by stoning at the hands of the 
 people, or if the people do not so punish him, then God 
 will cut him off. Such phrases as "they shall bear 
 their sin," 138 or "they shall bear their sin and shall die 
 childless," 139 or "they shall die childless," 140 would 
 also be most naturally understood as taking the right 
 of punishment away from the human court and 
 leaving it to Heaven. It has been suggested that the 
 Niqtal form, usually translated as passive "and shall 
 be cut off," should be understood in a reflexive sense, 
 "(that soul) cuts itself off." But this explanation 
 
 . 55a. 
 
 Katan 28a; J. Bikk. II, 1, 64c. 
 
 136 Sanh. 64b, 90b to Num. xv, 31; Maimonides, Hilchoth 
 Teshuba 8. According to Maimonides, "death by the hands 
 of Heaven" differs from Kareth, in that the former refers 
 only to this life, the death serving as an expiation, whereas 
 Kareth refers also to the future life. But see Jebam. 2a, 
 Tosafoth ne^X on the meaning of Kareth. 
 
 137 Lev. xvii, 10; xx, 3, 5, 6. Cf. "and 7 will destroy," 
 parallel to "and shall be cut off" Lev. xxiii, 29, 30. 
 
 138 Lev. xx, 19. 
 
 139 Lev. xx, 20. 
 
 l40 Lev. xx, 21.
 
 28 Capital Punishment Among the Jews 
 
 seems unlikely in face of the occurrence of the active 
 forms "I will cut off" or "and I will destroy that soul 
 from the midst of its people." 137 Whatever be the 
 preferable explanation of Kareth in each passage in 
 which the term occurs, the interpretation consistently 
 given to it by the Rabbis is highly significant. Their 
 tendency away from capital punishment is clearly seen 
 in their leaving to the heavenly tribunal the punish- 
 ment in all cases where Kareth is prescribed in the 
 Bible." 1 
 
 The other restrictions in court procedure are too 
 well known to need setting forth here in detail. It is 
 enough to mention some of the rules of evidence, 
 particularly the minute safeguards with which the 
 giving of testimony was surrounded. Torturing of 
 witnesses to extract from them convicting evidence 
 was entirely unknown. The aim of the court was to 
 lead the witnesses into giving evidence favorable to 
 the accused, not to coerce them into helping condemn 
 him. According to R. Jose b. Jehudah, a witness could 
 testify only in favor of the accused. 142 The two wit- 
 nesses had to be free adult men, 143 sound in mind and 
 body, of unquestioned integrity, 144 and free of all 
 suspicion of personal relationship to the defendant 145 
 or interest in the case. 146 They were first solemnly 
 warned and adjured as to the blood responsibility 
 
 , according to Rabbinical law, could be commuted 
 to scourging under certain conditions. Mishna Mace, iii, 15. 
 142 Sanh. 33b. bottom. 
 143 Baba Kamma 88a. 
 
 1 **Mishna Sanh. iii, 3 ; Sanh. 24a, 24b, 25b. 
 146 Mishna Mace, i, 8; Mace. 6b, 7a; Mishna Sanh. iii, 4. 
 146 Baba Bathra 43a.
 
 Capital Punishment Among the Jews 29 
 
 resting on them and their heirs after them. 147 They 
 were then cross-examined separately, 148 very search- 
 ingly, 149 with the haqira affecting place, 150 time, the 
 warning, etc., and with the bediqa going into the 
 smaller details. 151 A slight contradiction or dis- 
 crepancy in their evidence invalidated their testi- 
 mony. 152 They had to prove the act, and, what was far 
 more difficult, prove also the intention. In order to be 
 able to prove deliberate and understanding premedita- 
 tion, the witnesses must both have warned the accused 
 before he committed the crime, 153 with a clear warning 
 (Hathraa}, including a definite reference to the kind 
 of punishment and the measure of punishment which 
 his act would involve. 154 The warning given by them 
 had to have been so clearly understood, that the 
 accused had replied that he would commit the crime 
 none the less, thereby showing that he had fully 
 understood the warning. 155 The act must have followed 
 closely on their warning, or the warning by the wit- 
 nesses was not considered adequate, on the ground 
 that in the intervening time it may have escaped the 
 culprit's memory. 156 If there was a technical flaw in 
 
 147 Mishna Sanh. iv, 5 ; Sanh. 37a. 
 
 148 Sanh. 29a; Susanna 52 seqq. 
 
 149 Sanh. 32b. 
 
 150 Mishna Sanh. v, 1. 
 
 151 Mishna Sanh. iii, 6; v, 2. 
 
 152 Mishna Sanh. v, 2 ; Sanh. 40a ; Susanna ibid. ; Mark xiv, 
 56, 59. 
 
 153 Mishna Sanh. passim; Sanh. 40a-41a; 80a; Mishna Mace. 
 1, 9; Mace. 6b; Mechilta to Exod. xxi, 12; Sifra to Num. xv, 
 33 and to Deut. xxii, 24. 
 
 15 *Sanh. 8b; Mace. 16a. 
 
 155 Sanh. 8b. 
 
 156 Sanh. 40b.
 
 30 Capital Punishment Among the Jews 
 
 the giving of this warning by the witnesses, the 
 accused was given the benefit of the doubt that there 
 had not been dolus but only culpa 1 and where the 
 crime was not premeditated, no death penalty could 
 be imposed. 158 
 
 Further, circumstantial or presumptive evidence was 
 disallowed. The witnesses had to have seen each other 
 when the act was committed, 159 and had to have seen 
 the act itself, and not only what went before it or what 
 followed it. For instance, even in early Rabbinic days, 
 Simon ben Shetach (fl. 80 B. C. E.), who undoubtedly 
 believed in and imposed the death sentence during his 
 lifetime, 160 did not consider the strongest circumstan- 
 tial evidence as evidence. It is related 161 that he once 
 saw one man pursuing another. He followed them 
 and found the pursued man murdered and the pursuer 
 holding a sword dripping with blood. Simon said to 
 the murderer : 'Either you or I killed this man. But 
 what can I do ? Your blood guilt is not delivered into 
 my hands ; for the Torah says 162 that you can be con- 
 demned only by the actual testimony of two or more 
 witnesses. May God who knows the inward thoughts 
 requite the one who committed this murder.' 163 
 
 In these and in similar ways, tradition developed the 
 
 157 Sanh. 41a ; 8b ; Mace. 6b ; 9b. 
 
 158 E. g. a money penalty was allowed in compensation for 
 unintentional murder or constructive homicide, Exod. xxi, 
 29, 30. 
 
 159 Macc. 6b. 
 
 J E. g. Mishna Sanh. vi, 4. 
 
 161 Sanh. 37b; Mechilta to Exod. xxiii, 7. 
 
 162 Deut. xvii, 6. 
 
 163 Sanh. 37b and Tosafoth; Maimonides, Hilchoth Sanh. 
 xx, 1.
 
 Capital Punishment Among the Jews 31 
 
 rules contained in the Torah, that two witnesses were 
 needed and that the witnesses themselves had to carry 
 out the death sentence. As the number of necessary 
 conditions increased, it became virtually impossible in 
 a capital case to obtain unassailable testimony adequate 
 for a condemnation. 
 
 Many other legal refinements made it still more 
 certain that no one would ever be legally condemned to 
 death. For example, murder was not punishable by 
 death, as we have seen, if it could be proved to have 
 been not fully premeditated or intentional. Thus, if 
 the murderer had meant to kill one man and had killed 
 another; or had he meant to wound him on the thigh 
 and instead had struck him on the heart and killed him, 
 capital punishment could not be meted out, since the 
 criminal intent to kill was not present. 164 Again, if the 
 murderer were weak-minded, or intoxicated, or a deaf- 
 mute, or a minor, or acting under compulsion or acting 
 in self defence, 185 etc., he could not be condemned to 
 death. Or again, if the man murdered had been 
 fatally ill or for any other reason would not have lived 
 had he not been murdered, the guilty man was not 
 considered liable to the death penalty. And even if the 
 murderer was suffering from an illness that in the 
 ordinary course would shortly kill him, the court would 
 not anticipate God's decree by carrying out the death 
 penalty. 
 
 But over and above these thick protecting hedges 
 which made it virtually imposible to obtain a death 
 sentence, there were many other considerations which 
 
 184 Mishna Sanh. ix, 2. 
 185 Sanh. 72a.
 
 32 Capital Punishment Among the Jews 
 
 further removed the possibility of executing a capital 
 sentence. Thus there was a thorough-going rule that 
 no punishment affecting the personality of a man 166 
 might be imposed on a deduction a fortiori. 167 Unless 
 there was explicit Biblical warrant for the death 
 penalty, it was prohibited to deduce this penalty by 
 rules of interpretation, a principle in itself that worked 
 consistently towards moderating the severities of the 
 written law. 
 
 Moreover, just as the power of the witnesses was 
 minimized and the rights and privileges of the de- 
 fendant were magnified, so also the rights and 
 privileges of the judges were hemmed in and restrained 
 in every way. Only a high court of twenty-three 
 could try capital cases. 168 The judges all had to be 
 picked men of high standing, character and attain- 
 ments. 169 They were impressed with the words of their 
 own warning to the witnesses, that he who causes a 
 soul to be put to death unjustly is as though he had 
 destroyed the whole world. 170 When engaged on a 
 capital trial, they were put under severe discipline. 171 
 They took the place both of the counsel for the de- 
 fendant and of the jury. 172 Two death penalties could 
 not be pronounced on one day. 173 For final condemna- 
 
 166 Except in pecuniary penalties, Baba Kamma 4b, 
 Tosafoth. 
 
 167 Macc. 5b ; Kerit. 3a top ; Sanh. 54a bottom ; 76a ; Sif ra to 
 Lev. xx, 17. 
 
 168 Mishna Sanh. i, 4. 
 
 169 Mishna Sanh. iv, 2 ; Sanh. 36b. 
 
 170 Mishna Sanh. iv, 5. 
 
 171 Tos. Sanh. ix, 1. 
 
 17 *Tos. Sanh. vii, 2. The duty of trying to find means of 
 freeing the accused is deduced from Num. xxxv, 25.
 
 Capital Punishment Among the Jews 33 
 
 tion, a second ballot had to be taken on the following 
 day. 174 If twelve of the twenty-three judges were in 
 favor of acquittal against the other eleven, the de- 
 fendant was freed by the majority of one. But if 
 twelve held him guilty and eleven held him innocent, 
 the defendant could not be condemned by the majority 
 of one. A majority of at least two was necessary for 
 a condemnation. 175 A judge was not permitted to 
 change his mind and declare his decision for a con- 
 demnation when once he had voted for an acquittal. 1Ta 
 Unless each judge could give an individual reason for 
 his opinion his vote was not counted. 177 According to 
 the striking opinion of Rab Kahana, if the judges were 
 unanimously in favor of conviction, the accused should 
 be freed. 178 In general, it was held to be better that 
 the guilty should escape punishment than that one 
 innocent man be put to death. The judges had the 
 less hesitancy in inclining to mercy, because of the 
 belief that God would not allow the guilty to remain 
 unrequited. 179 In the story of circumstantial evidence 
 quoted above, Simon ben Shetach left the punishment 
 of the murderer to God. When the Jewish courts no 
 longer had jurisdiction, it was felt that God would 
 fittingly punish those who had rendered themselves 
 
 173 Except for an adulterer and an adulteress receiving the 
 same punishment for the same sin, J. Sanh. IV, 5. Tos. Sanh. 
 vii, 2. 
 
 174 Mishna Sanh. iv, 1 ; v, 5. 
 
 175 Mishna Sanh. i, 6; iv, 1 ; v, 5. 
 
 176 Mishna Sanh. iv, 1 ; v, 5. 
 
 1T7 Tos. Sanh. vii, 2, ix, 1 ; Sanh. 32a, 34a. 
 
 "8Sanh. 17a. 
 
 179 Deut. xxxii, 35.
 
 34 Capital Punishment Among the Jews 
 
 legally liable to the death penalty. 180 The Mechilta, 
 elaborating the Biblical words "For I, God, will not let 
 the guilty go free," 181 says, that if one who is guilty has 
 been discharged by the court as not guilty, he is not to 
 be taken back for a retrial. God has instruments and 
 means enough to bring upon him the punishment that 
 he has incurred. 
 
 After an acquittal there could be no appeal; but 
 after a conviction an appeal could be lodged at any 
 time. 182 If one ultimately was condemned, he was 
 given every facility to escape his fate through the 
 publicity of a herald's proclamation, 183 through the 
 assiduous attempt to elicit new favorable evidence 
 even during the procession to the place of execution, 184 
 etc. 
 
 Examples of legal safeguards could readily be mul- 
 tiplied. But it is sufficient for our present purpose to 
 sum up these details by saying that the publicity of 
 the trial, the confrontation of the defendant and the 
 plaintiff, the absence of torture, the careful elimination 
 of improper witnesses, the solemn warning to the 
 witnesses, the searching examination of the witnesses, 
 the remarkable requirements for a valid warning, the 
 
 180 Instead of the required stoning, the culprit would fall 
 from a roof or be trampled by an animal. Instead of being 
 burned by the sentence of a court, he would fall into a fire or 
 be bitten by a snake. Instead of being executed by the court, 
 he would fall into the power of the government or of robbers. 
 Instead of suffering the legal punishment of strangulation, he 
 would die from drowning or suffocation. Sanh. 37b. 
 
 181 Exod. xxiii, 7. Rashi. 
 
 182 Mishna Sanh. iv, 1. 
 
 183 Sanh. 42b, 43a. 
 
 184 Macc. 7a; Mishna Sanh. vi, 1 seqq. ; Susanna 45; Moed 
 Katan 14b.
 
 Capital Punishment Among the Jews 35 
 
 extraordinarily high standard as to what constituted 
 evidence, the equally extraordinary number of loop- 
 holes allowed to the defendant, the limitations on the 
 court, forbidding it to deduce a capital punishment if 
 the Bible did not explicitly call for one, the immediate 
 acquittal by any majority of the judges, the postpone- 
 ment of the final decision if a majority were in favor 
 of death, the obligation on those who had voted against 
 the death penalty of keeping their vote unchanged at 
 the second ballot, together with the permission to 
 change their opinion granted those who had voted in 
 favor of the death penalty, the right of the judges after 
 a condemnation to change their opinion any time before 
 the execution, the constant public appeal for further 
 evidence until the final execution, the prohibition of 
 more than one capital sentence being pronounced iji 
 one day, and other innumerable elements of legal inter- 
 pretation and procedure, all worked to make legal 
 capital punishment impossible of practical application. 
 
 Practise and Theory 
 
 In view of the fact that in pre-Christian and the 
 earliest Rabbinic times legal capital punishment was 
 carried out, as has been shown above, it becomes neces- 
 sary to inquire when and why the practise of capital 
 punishment ceased among the Jewish people. In Bib- 
 lical times, and in post-Biblical times when the Saddu- 
 cees controlled Jewish life, the old death penalties were 
 carried out without essential modification. But under 
 Roman rule, a change took place. Schiirer claims 186 
 
 18B Schuerer, (4th edit.), II, 261, note 79; and pp. 264, 265.
 
 36 Capital Punishment Among the Jews 
 
 that from the very beginning of the Roman dominion 
 the Jewish courts lost their competence to judge capital 
 cases. According to the gospel according to John, 
 Pilate is made to say to the Jews, "Take Jesus your- 
 selves and judge him according to your law. The Jews 
 said unto him, 'It is not lawful for us to put any man 
 to death.' " 186 Talmudic sources state that forty 
 years prior to the destruction of the Temple, i. e., 
 30 C. E., the right of deciding capital cases was taken 
 from the Jewish courts. 187 But Rab Joseph, R. Hiyya 
 and the school of Hezekiah taught, that this right was 
 taken away from the Jews by the Roman government, 
 from the time that the Temple was destroyed, i. e., 
 70 C. E. ; adding, that the Sanhedrin abolished the 
 practise though not the theory of the four death 
 penalties. 188 Of these two dates given by the Rabbis, 
 the second is apparently correct. The earlier date, 
 30 B. C. E., probably arose from a misunderstanding. 
 The original statement made by R. Ishmael b. Jose, 
 (end of the second century), was that forty years 
 before the destruction of the Temple, the Sanhedrin 
 moved from the Temple and held its sessions in a shop. 
 There is no reason to doubt this statement, Schiirer 
 notwithstanding. But R. Isaac bar Abdimi added to 
 it: "This implies that they no longer judged capital 
 cases." This second statement is seemingly not an 
 
 186 John xviii, 31. The trial of Paul described in Acts xviii, 
 12-16, reflecting conditions in Corinth, depicts the Jew as 
 exercising jurisdiction only in religious matters. 
 
 187 Sanh. 41a bottom; Sabb. 15a; Aboda Zara 8b; Rosh 
 Hashana 31a bottom; Mechilta de R. Simon p. 126; J. Sanh. 
 I, 1, 18a ; VII, 2, 24b ; Nachmanides to Numbers xxxv, 29. 
 
 188 Sota 8b; Keth. 30a bottom; Sanh. 37b.
 
 Capital Punishment Among the Jews 37 
 
 historical tradition, but only an inference drawn on 
 the theory that capital sentence could be pronounced 
 only in the special hall of the Sanhedrin in the Temple. 
 This inference is disproved by a number of historical 
 facts, which show that the Rabbinical courts had com- 
 petence in capital cases in Roman times until the de- 
 struction of the Temple and of the Jewish State in 
 70 C. E. Josephus mentions the reluctance of the 
 Pharisees to impose the death penalty, contrasting 
 them in this regard with the Sadducees. 189 He states 
 further that when a Sadducee became a judge, he 
 would adopt Pharisaic norms of judgment, because 
 the public would not otherwise tolerate him. 190 Else- 
 where 191 he mentions that the Essenes punish blas- 
 phemy by death. These three notices, although not 
 necessarily referring to post-Christian times, are 
 significant when taken in connection with the following 
 facts. Up to the time of the destruction of the Temple, 
 the Romans granted to the Jews the right to put to 
 death any foreigner, even a Roman citizen, who passed 
 beyond the Temple limits, 192 and there is no warrant 
 for Schiirer's supposition that this right could be 
 exercised only after obtaining the sanction of the 
 procurator. 193 Certainly under King Agrippa, 41-44 
 C. E., this Jewish law of capital punishment was in 
 force. 194 The story of the trial of Stephen 195 and the 
 different accounts of the trials of Paul before the 
 
 1S9 Antiq., XIII, x, 6. 
 Ibid., XVIII, i, 4. 
 War, II, viii, 9. 
 2 War, VI, ii, 4. 
 
 193 Schuerer, II, 262. See J. Juster, Les Juifs dans I'Empire 
 Remain, II, 142, note 5.
 
 38 Capital Punishment Among the Jews 
 
 Sanhedrin, 196 although they are often untrustworthy, 
 presuppose the competence of the Sanhedrin to judge 
 capital cases at a period later than the year 30 C. E. 
 Anan, the Sadducean highpriest for three months in 
 62 C. E., is said by Josephus to have imposed and 
 carried out the death penalty. 197 Rabbi Eleazar ben 
 Zadok cannot have seen the burning of the high 
 priest's daughter 198 prior to 40 C. E., since in the year 
 70 C. E. he was still a young man. 
 
 There seems therefore to be no valid reason for 
 doubting the statement of R. Joseph, R. Hiyya and the 
 school of Hezekiah, that the Roman government 
 allowed the Jewish courts a measure of jurisdiction 
 in capital cases up to the time of the destruction of the 
 Temple in 70 C. E., 189 but that after that date the 
 Jewish courts were no longer allowed this jurisdiction. 
 Origen (d. 254 C. E.) says that the Jewish law can no 
 longer punish the murderer or stone the adulteress 
 because the Roman government has assumed these 
 rights. 200 The Didascalia 201 also remarks, that the 
 Jewish law of capital punishment is no longer in force. 
 
 194 Agrippa's Letter to Caligula; Philo Leg., 39, quoted in 
 Juster loc. cit., p. 139, note 1. 
 
 195 Acts vi, 7 et seqq. 
 
 196 Acts xxi, 28f ; (xxiv, 6; xxi, 29) ; xxvi, 21 ; (xxiii, 6, 29; 
 xxiv, 5, 12ff ; xxv, 7f . 27 ; xxii, 24, 30) ; xxiv, 6 (8) ; xxiii, 3, 9. 
 
 107 Antiq., XX, ix, 1. Jos. Lehmann, Revue d. Etudes juives, 
 XXXVII, 1898, pp. 13, 14. 
 
 198 See note 33. 
 
 199 Juster, /. c. 122-149, from a thorough examination of the 
 sources comes to the conclusion that the Sanhedrin preserved 
 the right of both pronouncing and of carrying out a capital 
 sentence until the year 70 C. E. 
 
 200 In Rom. 1, 6, c. 7, quoted by Juster, ibid., p. 150. 
 
 201 Didascalia Ch. xxvi, 6; xix, 2. Juster, ibid.
 
 Capital Punishment Among the Jews 39 
 
 The Talmud testifies uniformly that the Jewish courts 
 had no power over life and death after the year 70 C. E. 
 
 But there are some minor exceptions to this that 
 must be noted. 
 
 (i) A certain R. Hama b. Tobiyah caused Imarta, 
 daughter of the priest Tali, to be burnt. But his 
 action was condemned, both because the sentence had 
 been carried out in the barbarous non- Pharisaic method 
 that R. Eleazar ben Zadok had seen in his youth, 202 and 
 because a capital sentence had been imposed after the 
 destruction of the Temple. 203 (ii) On one occasion a 
 certain Tamar was condemned (although not to capital 
 punishment) by Rab Ammi, Rab Assi and Rab Hiyya 
 b. Abba in Tiberias (c. 300 C. E.). She complained to 
 the Roman proconsul in Caesarea of this usurpation 
 of the Roman right of judgment, and the influential 
 intervention of Abbahu was required to protect the 
 Rabbinical judges. 204 (iii) On another occasion, Rab 
 Shila, perhaps the Tana of that name, caused a man 
 who had committed an offence to be whipped. The 
 man complained to the Roman government that Rab 
 Shila was exercising judicial functions without the 
 authority of the government. The government sent 
 an officer to investigate the case, and the complainant 
 was adjudged by the officer to have rendered himself 
 liable to the death penalty through the offence for 
 which R. Shila had punished him. The offender was 
 
 202 See note 33. 
 
 203 Sanh. 52b. 
 
 204 J. Meg. HI, 2. 74a. Graetz (3rd edit.), IV, 284f. Bacher, 
 Agad. d. pal. Amoraer, II, 94f. For a different interpretation, 
 see Perles, Monatsschrift, XXXVII, 359-361.
 
 40 Capital Punishment Among the Jews 
 
 thereupon handed over by the officer to Rab Shila. 
 But Rab Shila refused to consummate the sentence, on 
 the ground that since the exile from Palestine, the right 
 of capital punishment had not been vested in the Jews. 
 Subsequently, when the man was about to make a 
 second complaint about Rab Shila, Rab Shila who had 
 been given the staff of judicial authority, killed the 
 man with his staff. 205 (iv) Another case in point is the 
 following: A man once declared before Rab (d. 247 
 C. E.), that he would persist in a certain course 
 despite Rab's warning. Rab Kahana who was present 
 rose up and killed the contumacious man. Rab de- 
 clared the killing to be legally justified, but advised R. 
 Kahana to flee to Palestine, since the new Persian 
 rulers were stricter in punishing bloodshed than the 
 Romans had been. 206 (v) Lynch law is recognized by 
 the Mishna, when it allows certain offenders to be 
 struck down flagrante delicto. 20 " 1 (vi) In connection 
 with the remark that the one born under the planet 
 Mars will be a shedder of blood, Raba (4th century) 
 said, 'I was born under Mars'; to which his pupil 
 Abaye remarked, 'Master, you also (as exilarch) 
 punish and put to death/ 208 (vii) Origen in his letter 
 to Africanus (240 C. E.) declares that the Jewish 
 
 205 Ber. 58a. 
 
 206 Baba Kamma 117a, 117b. 
 
 207 Sanh. viii, 7. According to tradition, the offender may be 
 killed flagrante delicto in the three cases there mentioned, only 
 if he has received legal warning (see to notes 153-158), and if 
 a lesser physical injury would be insufficient to prevent the 
 crime. Mishna Sanh. ix, 6 mentions three other cases, in at 
 least one of which the zeal of the one who would strike down 
 the offender is restrained by a number of conditions.
 
 Capital Punishment Among the Jews 41 
 
 Patriarch in Palestine exercised the power of im- 
 posing and carrying out capital sentences. 209 
 
 But the utmost that these cases prove is, that sub- 
 sequent to 70 C. E., a capital sentence carried out by a 
 Jew, whether by lynch law or after judicial trial, was 
 an exception occasionally tolerated through the 
 generosity, the weakness or the corruption of the 
 Roman or the Persian authorities. The fact remains 
 that subsequent to 70 C. E., the Jewish law governing 
 capital punishment fell into disuse. The Amoraim, 
 although they were the bearers of tradition, were not 
 familiar in practise with the actual judgment of 
 capital cases and the imposition of capital punishment. 
 It is clear, therefore, that many of the dicta of the 
 later Rabbis concerning details of the law of capital 
 punishment are legal inferences rather than historical 
 facts, and many of their discussions are discussions of 
 theory as to how the death penalty would be carried 
 out if the Rabbinic courts should again have 
 jurisdiction. 
 
 Similarly, much of the elaboration of criminal legal 
 procedure at which we have glanced is a theoretic 
 development, dating from the first centuries of the 
 common era, which was never put to a practical test. 
 Many elements in it, such as the regulations governing 
 witnesses and their testimony, are elaborated theoret- 
 ical developments of early practise. In their fully 
 developed form, these regulations would have broken 
 down as unworkable at the first touch of practise. 
 Much else is on the face of it dialectic, legal discussion 
 
 209 Ep. ad. African. Par. 14. Juster /. c., p. 151, note 2.
 
 42 Capital Punishment Among the Jews 
 
 conducted on the principle of the meritorious nature of 
 constant exposition and interpretation of the law. 
 This principle indeed is quoted in connection with the 
 decisions governing capital punishment. 210 As an 
 instance of this type of expository discussion, may be 
 mentioned the decision 211 that strangling should be the 
 punishment for one who through craft or force gets 
 another into his power, forces him to serve, and then 
 sells him into slavery. Such a ruling is hardly a 
 precedent based on practical experience. The dis- 
 cussion in the Talmud 212 proves it to be only a theo- 
 retic case. Similarly, the restrictions governing the 
 treatment of the apostate city are admittedly only 
 theoretic, since the conditions required were so many 
 and so specialized that they could never occur together. 
 It is frankly confessed, that these conditions are only 
 the result of study-house discussion conducted for the 
 merit of detailed and far-reaching interpretation. 213 
 In exactly the same way, it is openly stated, that a case 
 of the "rebellious, gluttonous son" 214 never had 
 occurred and never would occur, the conditions re- 
 quired by the Rabbinic jurists being practically im- 
 possible of occurrence together. The formulation of 
 these conditions was admittedly only the result of 
 dialectic development. 215 
 
 A passage was quoted above, 216 prescribing imprison- 
 
 210 Sanh. 51b. 
 211 Mishna Sanh. xi, 1. 
 212 Sanh. 86a. 
 
 213 Tos. Sanh. xiv, 1; Sanh. 71a. 
 214 See note 98. 
 
 215 Deut. xxi, 18-21 ; Mishna Sanh. viii, 1-5 ; Tos. Sanh. xi, 6 ; 
 Sanh. 71a. 
 216 Note 120.
 
 Capital Punishment Among the Jews 43 
 
 ment in a kipah in certain cases. Where the Talmud 
 asks what is meant by kipah, and R. Jehudah explains 
 that by kipah is meant a den of about five and a half 
 feet in size, 217 it is clear that we are dealing with 
 traditions about legal matters which had not had 
 practical application within the memory of the 
 Amoraim. When, further, we remember the discus- 
 sions among the Rabbis themselves, such as which death 
 penalty should go with which crime, or which would 
 be the correct method of execution, or whether the 
 dead body has to be hanged only in certain cases or 
 in others also, and similar debates, it is clear that we 
 often have to do with matters of theoretic discussion 
 about which there was no certain tradition. In fact, 
 in one passage, a legal decision concerning capital pun- 
 ishment is called a decision that will be of practical 
 application only when the Messiah comes and the 
 Jewish system of capital punishment will be once more 
 in use. 218 
 
 The result, therefore, to which our investigation 
 leads along various converging lines is, that originally 
 the death penalty was carried out through the decisions 
 of the court approximately according to the demands 
 of the Bible. But at least as early as the beginning of 
 the Christian era, modifications had arisen, particu- 
 larly among the Pharisees, affecting the methods of 
 inflicting the death penalty. 219 These modifications 
 apparently grew out of two chief causes, (a) the 
 
 81b. 
 218 Sanh. Sib. 
 
 219 E. g. Judah ben Tabbai and Simon ben Shetach, Mishna 
 .Mace, i, 6; Mace. 5b; Sanh. 37b.
 
 44 Capital Punishment Among the Jews 
 
 desire to preserve the body from mutilation or dis- 
 figurement (possibly in part owing to the Pharisaic 
 belief in the resurrection which had not been of 
 weight with the Sadducees), and (b) the tendency to 
 extend the golden rule, so as to make the death penalty 
 as humane as possible. But the Rabbinic courts lost 
 their jurisdiction in capital cases at the fall of the 
 Jewish state in 70 C. E. With this, went the trans- 
 ference of the problem of capital punishment from the 
 realm of fact to that of legal theory, and Rabbinic, 
 juristic imagination became free to develop the field 
 of historical tradition, untrammeled by the restraints 
 of practise. The compensating spiritual inbreeding, 
 which occurred when external manifestations of 
 Jewish national life were proscribed, resulted, in this 
 special legal field as in all other fields of Jewish 
 thought, in the over luxuriant development of the 
 theory of Jewish practise. In Amoraic times, the 
 Rabbis no longer recognised with certainty in many 
 cases, whether a practise was old and traditional, or 
 whether it was a comparatively new development 
 based only on theoretic deduction. Even in early 
 Tannaitic times, there was often uncertainty as to 
 what was known through tradition and what was 
 known through interpretation. This is brought out 
 very clearly in the account of the discussion between 
 Hillel and the Bene Bethera on the question of the 
 sacrifice of the paschal lamb on Sabbath. 220 The 
 Rabbis therefore often projected legal conceptions 
 into the past as actual facts. 221 
 
 220 J. Pes. VI, 1 beginning, 33a. 
 
 221 Sanh. 53a, top, makes the claim that the decisions con-
 
 Capital Punishment Among the Jews 45 
 
 It is impossible for us to pick out from the vast 
 accumulation of statements, rules and principles 
 governing capital punishment according to Amoraic 
 ideas, exactly how much is historical tradition founded 
 on actual practise and how much only theoretic de- 
 duction. But from the beginning of the Rabbinic 
 period, we can clearly trace a growing feeling of 
 repugnance to capital punishment, which, along various 
 lines, succeeded in making capital punishment obsolete 
 through legal theory. Had the later Rabbis ever been 
 granted the right of trying capital cases, the theory 
 which had been developed would have made legal 
 capital punishment impossible of application. Thus 
 the Mishna already could say, 222 that a Sanhedriri 
 condemning to death once in seven years was called a 
 destroying or bloody Sanhedrin. Rabbi Eleazar ben 
 Azariah (first cent.) said that it was so called for 
 imposing the death penalty even once in seventy 
 years. 223 
 
 It should be plainly recognised that capital punish- 
 ment was never formally abolished by the Rabbis. 
 The penalty of death was demanded by the laws 
 contained in the sacred statute book, the Bible, and as 
 such it was accepted as needing no justification or 
 defence. But it was legislated out of all practical 
 application in the development of the law. The Rabbis 
 of the Talmudic era abolished capital punishment in 
 
 cerning the four methods of capital punishment are traditional. 
 
 222 Mishna Mace, i, 10. 
 
 223 It is not unlikely that both statements represent historical 
 theory rather than historical fact, a suggestion that seems to 
 find support from the words that follow, in which Rabbi 
 Akiba and Rabbi Tarfon claim that had they been members of
 
 46 Capital Punishment Among the Jews 
 
 the only way open to them, in theory, as they would 
 undoubtedly have abolished it also in legal practise 
 while retaining it as a dead letter on the fundamental 
 statute book, the Bible, had Jewish national inde- 
 pendence been regained in their day. 
 
 Post-Talmudic Development 
 
 A few words should be added relative to the de- 
 velopment of the idea of capital punishment among the 
 medieval Jews. 
 
 In post-Talmudic times, the problem of capital 
 punishment according to Jewish law scarcely arose. 
 Although the theory of it had been fully worked out, 
 there were no occasions for the application of the 
 theory, both because the Temple no longer stood and 
 the Jewish courts had no jurisdiction, 224 and because 
 after the interruption of Semicha (ordination), no 
 judges were regarded as competent. 225 This statement 
 is true, however, only with certain limitations. 
 Although as a general rule the Jewish courts in the 
 diaspora had no jurisdiction in capital cases, there 
 were times and places in which the power of imposing 
 the death penalty was vested in the Jewish courts. 
 Thus Asheri (c. 1300) wrote: "In no country of which 
 I have heard have Jews their own courts for the trial 
 of criminal cases except here in Spain. It was a 
 source of great astonishment to me when I came to 
 Spain, that the Spanish Jews should try criminal cases 
 
 a Sanhedrin, the death sentence would never have been 
 imposed. 
 
 224 See notes 104 and 105. 
 
 225 Tur, Hoshen Mishpat, I. 3.
 
 Capital Punishment Among the Jews 47 
 
 without the full and authorized Sanhedrin ; but I was 
 informed that this was done in accordance with an 
 order of the government." 226 Similarly, we find the 
 Jews of Tudela asking the viceroy of Navarre, "That 
 he would be pleased to order and that we practise the 
 Jewish law as our ancestors have hitherto; that is, 
 when a Jew or Jewess commits a sin, on our magis- 
 trates applying to the bailiff and notifying to him the 
 sin committed, and the punishment it deserved 
 according to Jewish law, the bailiff shall execute it, 
 and enforce the sentence of our said magistrates, 
 whether of condemnation or acquittal; or of any 
 demand from one Jew to another, as we have been 
 accustomed, not affecting the rights of our lord the 
 king." This right was granted them. 227 
 
 Asheri himself unhesitatingly imposed the sentence 
 of death on an informer. 228 The Moser (informer, 
 delator) , constituted so poignant a danger to Jewry in 
 exile, that the death penalty was not infrequently 
 consummated in his case. Jewish law gives the right 
 to kill the informer, on the principle of life for life. 
 Since he is seeking your life, you are justified in saving 
 your own by taking his. 229 The death sentence on 
 the Moser was pronounced by the Jewish community 
 and carried out by the non- Jewish authorities to whom 
 the convicted delator was handed over. Maimonides 
 (12th cent.) declares that it regularly happens in the 
 cities of the West that they kill informers, or hand 
 
 22 Responsa XVII, 8. Cf. Teshuboth Ha-Rashba, II, 290. 
 227 Lindo, The Jews of Spain, p. 150f. 
 228 Responsa XVI. 1. 
 229 Ber. 62b, 72a.
 
 48 Capital Punishment Among the Jezvs 
 
 them over to the non-Jews to be killed or dealt with 
 according to their guilt. 230 
 
 Similarly, Asheri's son, Jacob, in conjunction with 
 a tribunal of Rabbis in Toledo, condemned to death the 
 informer Joseph ben Samuel and handed him over to 
 the royal executioner. 231 Joseph ibn Migas of 
 Lucena (d. 1141) caused an informer to be stoned on 
 the eve of the day of Atonement. 232 Others, who 
 approved of the extermination of informers, or who 
 actually passed the sentence of death on them and 
 handed them over to the State authorities for execu- 
 tion, were such leaders of Spanish and North African 
 Jewry as Jonah Gerondi and Solomon ben Adereth 
 (c. 1280), 233 Isaac ben Shesheth (14th cent.), Abraham 
 Benveniste (1432), Simon ben Zemach Duran (1400), 
 and his son Solomon. In the particular case in which 
 Jonah Gerondi and Solomon ben Adereth acted as the 
 judges (c. 1280), the family of the informer tried in 
 vain to stir up the non-Jewish authorities by declaring 
 that a judicial murder had been committed. They 
 claimed that according to Jewish law, the Jews had 
 long foregone the right of imposing a capital sentence, 
 that the sentence had not been pronounced by a San- 
 hedrin of twenty-three, etc. The authorities refused 
 them a hearing. But Solomon ben Adereth found it 
 necessary to justify the action that had been taken. 
 He therefore submitted the case in all its details to the 
 
 230 Yad, Hilchoth Hobel u-Mazzik, viii, 2. 
 
 231 Judah ben Asher, Responsa Zichron Jehuda f. 55b, 
 No. 75, quoted by David Kaufman, Jew. Quart. Rev. 1896, 
 VIII, pp. 219f. 
 
 233 Responsa of Rashba V, 290.
 
 Capital Punishment Among the Jews 49 
 
 Rabbis of North France. Only one answer has been 
 preserved, that of Rabbi Meir of Rothenburg, who 
 clearly and decidedly ranks himself on the side of 
 Ben Adereth. 234 But it will be seen that in all these 
 cases, the utmost power that was allowed to the 
 Jewish tribunal was that of pronouncing the sentence 
 of death. The consummation of the sentence was left 
 to the State authorities. On Aug. 21, 1379, at the 
 request of a delegation of Jews, the royal farmer of 
 taxes, Joseph Pichon, was beheaded as an informer by 
 the royal executioner. One result of this affair was, 
 that the Cortes issued the following decree, depriving 
 the Rabbis and the Jewish courts of the country of the 
 right of deciding criminal cases : "We ordain and 
 command, that henceforward it shall not be permitted 
 for any Jews of our kingdoms, whether rabbis, elders, 
 chiefs or any other persons that now are or shall be 
 hereafter, to interfere to judge in any criminal cause 
 to which death, loss of limb or banishment is attached ; 
 but they may decide all civil causes that appertain to 
 them according to their religion. Criminal cases shall 
 be tried by one of the Alcaldes, chosen by the Jews in 
 the towns and places of their respective jurisdictions.... 
 This is to be understood for those criminal cases that 
 have hitherto been tried by the said Jews.... 235 Subse- 
 quently, owing to the influence of Abraham Benveniste, 
 this right of judging criminal cases was restored to the 
 Jewish courts in Spain. 
 
 234 Kaufmann, Ibid, pp. 221-238 gives all the details of this 
 interesting leading case. 
 
 285 Lindo, Jews of Spain, 160-162. Graetz, Geschichte, 
 VIII, 44.
 
 50 Capital Punishment Among the Jews 
 
 But this power could hardly be exercised outside of 
 Spain and North Africa, and in those lands it could be 
 exercised only in favorable periods. In Angevin 
 England, "Criminal cases between Jews, except for the 
 greater felonies, as homicide, mayhem, etc., could be 
 decided in the Jewish courts according to Jewish 
 law." 238 In other lands also, the Jewish courts were 
 sometimes empowered to try lesser criminal cases ; but 
 rarely, if ever, could they independently impose and 
 carry out the death sentence. At a later period, the 
 Kahals in Eastern Europe were granted autonomous 
 jurisdiction in civil cases. But their greatest power 
 hardly exceeded the right given them in Lithuania by 
 charter of King Michael Wishnevetzki (1669-73), "to 
 summon the criminals before the Jewish courts for 
 punishment and exclusion from the community when 
 necessary." Rabbi Meir Sack emphatically protested 
 against buying the freedom of Jewish criminals from 
 the authorities. "We should endeavor to deprive 
 criminals of opportunities to escape justice." Similarly, 
 Meir Lublin declares that the death penalty for a 
 murderer, decreed by the law of the land, should be 
 allowed to be Consummated, if the murderer were a 
 Jew. 237 
 
 It may be stated broadly, that after the Roman 
 period, the right of pronouncing the death sentence 
 was only rarely granted to the Jews, while the right of 
 inflicting capital punishment was practically never 
 vested in the Jewish community. Theoretically, 
 
 236 Jacobs, Jews of Angevin England, pp. 331, 43, 49. 
 237 Responsa, 138, Jew. Encycl., Art. Lithuania.
 
 Capital Punishment Among the Jews 51 
 
 Jewish legal opinion gave to the leading authorities of 
 the generation or of the district, the right to act as a 
 competent Sanhedrin of twenty-three in judging 
 criminal and capital cases, on urgent occasions of 
 popular wrongdoing. 238 But this right could so rarely 
 be exercised that it became virtually obsolete. 
 
 238 Tur and Shulchan Aruch, Hoshen Mishpat ii. Cf. the 
 exemplary punishments referred to above, notes 14 and 80.
 
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