TTI EZ

C RIM INA L C O DE O F THE J EWS

A C C O R D IN G TO T HE T A LM UD

A S S E C HE T H S Y N H E D R IN

ET HL H
B E R GE R . BE N N Y

LO N DO N

S M IT H ; E LD E R , CO .
, 1 5 WA T E R L O O PLA C E
1 880
 M RS J O S EPH N LI N D O
A ND .

T H IS S E R I ES O F P A P E RS

i s g x hit atth
1 1 T H E VE R Y S E NT I M E N T O F

K IN D LY R E GA R D
 PR E FA C E .

T HE following chapters appeared originally

as articles in the Pall M all Ga zette . They
a re here re p ri nted without material altera
tion and with some few additions
, . To the
kindness of M r F Greenwood the writer
. .
,

is i ndebted for many suggesti ons , wh ich

were followed when preparing them for
public a tion .
 C O N T E NT S .

C H A P TE R I .

I N T RO D UCT O R Y

C H A P TE R I I .

T HE DE V E L O PM E N T O F T H E M O SA I C C O DE O BS O
L ETE L AWS T H E L E x TAL I O N I S P R E S C R IP
T IO N s O F T H E T A LM U D

C H A PTE R I II .

T HE C N STIT U TI N
O O O F T HE C URT ST
O HE Q UAL I
U DGE S P E RS O N S D I S Q UAL I F IE D
F IC A T IO N O F J 28

C H A P TE R IV .

T HE C N S TITU TI N
O O O F T HE C UR T S D I V I S I
O O N
O F A U TH O R IT Y P R O C ED UR E

C H A P TE R V .
x C on ten ts .

C H A P TE R VI .

FO RM OF T R I AL IN C AP IT AL C AS E S

C H A P TE R V II .

T HE V AR I O US M ETH O D S OF E! E CU TI O N

C H A P TE R V II I .

M UR DE RA D ULTE RYI D O LA T RY

C H A P TE R I! .

C ITIE S O F RE FU GET H E P U N I S HME N T FO R PE R

J URY F LO G G IN O

C H A P TE R ! .

M I SC E LLA N E O US A SC O N CLUS I O N
L W
 T HE

CRIM INA L C O DE O F THE J E WS .

C HA PT E R I .

I NT R O D U CTO R Y .

HE who would u nderstand a people mu st

know its laws especially its penal laws not
,

the mere dicta of its statutes but their pra c ti ,

cal appl ication and its scheme of judicial a d

ministration The legal code o f a com mun ity
.

is to coin a pseudo c s i e n ti-
c term but a sys
tem of applied morals I n the criminal legisla
.

tion of a country is e m bodied the public stan

dard o f right and wrong The organ isation of
.

its tribunals the simplicity of its procedure

, ,

the severity of its penalties the nature of its ,

punish ments are so m any living illustrations

,

B
 '

2 C r zm zn a / C o a e
o M e 75 203 .

of the wisdom and forethought and j ustice

and human ity of those who frame interpret , ,

and abide by these laws N owhere are .

national peculiarities more Characteristically

prominent than in the ju ridical scheme and
penal p ractice of a people E very detail is .

i nstructive What for instance can be more

.
, ,

suggestive of the temper of the ancient

E gyptian with h is high notions O f rectitude
,

and h is stern sense of j ustice than the pro ,

h ib itio n of pleading on behalf of either plain

tiff or defendant P S ombre impassive and , ,

undemonstrative sat th e thirty j udges and

their self elected president in the hall of
-

assembly With reverential awe for the

.

wise men the s uitors entered each bringing

, ,

with hi m a written statement of the cause to

be adj ud icated upon The depositions were
.

handed to the chief of the tribunal who r e ,

c e iv e d them without question or comment .

The parties as silently withdrew only when

the decision of the court had been arrived at
were the plain ti ff and defendant re admitted -
,
 I n tr oducti o n .
3

i n order that the judgment might be c o m m u

micated to them The p icture of i nexible
.

i mpartiality here presented to us is com

pl e te .

Again can anything be more charac

,

te r is tic of Assyrian life than the inequality

between man and woman in the eyes of the

law wh ich we nd i nd icated in some of the
few fragments hitherto discovered of the

penal code of Ashur I f a husband runs ,

a cu neiform text say u nto h is wife Thou ,

art not my wife he shall pay half a minna of
,

s ilver But if a woman repud iate her h us
.

band and say u nto him Th ou art not my

, ,

husband ( i nn n a r n i na dnss n ) he shall drown ,

her in the river I n the criminal system of
.

the Athenians too i t is not a little indicative

, ,

of the re ned hypersensitive and articially

, ,

cultured Greek to nd hi m attempting to

emulate the gods by extending to the chil

dren of an offender the pun ish ment i n icted

on their parent E ven when a crime had.

already been expiated by death the descend ,

B 2
4 C r i m i na l C ode f
o tne y e n/ s .

ants of the condemned suffered the penal ty of

legal disqual ication S tudents O f antiqu ity
.

have been by n o 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 th e Parsis of the Greeks and of th e

,

R omans of the C hinese and of the M u s s ul

,

mans have found ze al ous exponents The

,
.

j udicial system O f the H ebrews alone has

been neglected N otwithstanding i ts value
.

as a record of J ewish thought and feeling

and custom it i s almost unknown to E ngl ish
,

scholars and jurists .

I t i s probably no exaggeration to assert

that not a do zen O f the foremost B iblical
critics in E ngland know anything O f the legal
code of the J ews The most profou nd ig no
.

rance prevails regard ing the practical mode

of administering law and justice as it o h
ta in e d among the H ebrews during the pro

h e tic period and at the time of the d e s tr u c

p
tion of the second Temple of j erusalem .
 I n tr o ducti o n .
5

The notions of J ewish law and j urisprudence

g enerally current are extremely vague an d
undened The popular conceptions upon
.

the subj ect are gathered fro m the inju nctions

and ordinances of the M osaic Pentateuch .

A s a matter of fact the laws of M oses are

,

about as well calculated to give one an in

sight into the H ebrew legal scheme as a
perusal of ou r statute book a collection of
our A cts of Parliament our written law
,

alone without the aid of common law

,

and precedent would give of the E nglish

,

system of j uridical procedure H e who .

would u nderstand the penal code of the

H ebrews the practical code that i s of the , ,

people as it was i n operation during the

,

later period of J ewish nationality mu st not

depend upon the Pentateuch H e must turn .

to the Talmud that much maligned and

even more m isunderstood comp ilation of
the rabbins ; that digest of what C arlyle
would term a ll er l ei wzks en s cnaf ten ; which is
at once the compendium of their literature ,
6 C r i m i na l C ode of tne y e ws .

the storehouse of their tradition the ex ,

ponent of their faith the record of thei r

,

acquirements the handbook of their c e re m o

,

n ials and the su mmary of their legal code

, ,

civil and penal H erei n he shall nd a sys

.

tem of jurisprudence ingenious an d elabo

rate ; a scheme of organ isation at once
simple and effective ; an d a cri minal law the
most interesting and probably the most h u
mane that antiqu ity has transmitted to us .

The sensati o n produced some few years

ago by the appearance of Dr Deutsch s bril
.

liant article o n the Talmu d is scarcely yet

forgotten. H ad this accomplished scholar
been longer spared literature would doubt
,

less have been enriched with many a mono

graph upon th e thousand and one subjects
treated of in this composition of the rabbins .

F ate has decided otherwise But the seed

.

he cast abroad into the world has not all fallen

into stony or sterile soil H e succeeded i n
.

arousing a general an d wide spread interest

-

i n the Talmud a nd its contents ; an i nterest

 l n tr od n eti o n .
7

which th e modern spirit of inqu iry has in

te n s i e d . We purpose therefore to devote
, ,

to the criminal law of the Talmud as laid

down i n M a s s e c h e th S y nh e d r inl not wholly ,

but pri ncipally there a few brief chapters

explaining the organisation of tribu nal s
among the J ews the constitution and ju ris
,

diction o f their S y nh e d r in their system of pro

,

c e d u re , their mode O f examining witnesses ,

their classication of cri mes the pu nishments ,

they in icted and their methods of executing

,

those cap itally condemned A s we before .

O bserved the subject is one entirely u n e x

,

p l o re d and an exposition however brief

, and
imperfect cannot but throw additional light
,

upon the character intellect and peculiarities

, ,

O f a truly wonderful people .

Two noteworthy w e can not say su ccess
ful attempts have of late been made to pre
sent to modern times a fair and impartial
view of the criminal legislation of the H e
brews O ne o f these is the monograph of
.

M T h o n is s e n in his E tudes sur l H is to ire

.
,

8 C r i m i n a l C o de f
o tae y ea /5 .

du D roit C riminel des Peuples Anciens The .

other is the Leg is l a tio n C riminelle d u Tal

mu d o f D r R a b b ino w ic z Both must be

. .

regarded as failures the former c o ns pic u

o u s l y so . M T h o n is s e n who is one of the
.
,

ablest C atholic professors i n Belgium has ,

failed from want of special knowledge ; D r .

R a b b ino w ic z has failed in sp ite of profou nd

Talmudic knowledge and general erudition .

A few observations i n explanation of this will

throw some light upon the peculi a r nature
of the treatise which forms the basis of ou r
knowledge O f the J ewish penal code M . .

T h o n is s e n has fou nded his study of the sub

e c t upon the text of the Pentateuch dis

j ,

regarding altogether the commentaries O f the

rabbins and their expositions N ow we have .

no wish whatever to enter into any arg ument

as to th e value of H ebrew traditi on or the
D ivine origin of th e O ral La w Th is how .
,

ever we assert : that the enactments Civil

, ,

and crimi nal of the F ive Books of M oses

, ,

as they stand i n the Bible are unintelligi ble

 I n tr od ucti on .
9

and incomprehensible unless accompan ied by

the explanation furnished by the M ischna
and G h e m a ra which together constitute the
,

Tal mud I n the rst place M oses i ndicated

.
,

only general principles for the gu idance of

the H ebrew judges A system of legal pro
.

c e d u re is altogether wanting The wisdom .

of a lawgiver says Bacon con sists not only
, ,

i n a platform O f j ustice but in the application

,

thereof M oses 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 M ischna We will quote one

.

contingency on l y one among many others

that arise in practice to sho w the occasional
i nadequacy of the provisions of the Pentateuch
taken alone A ccording to the M osaic law
.

a perjurer when convicted was to suffer the

same pu n ishment as the person against whom
he testi ed would have been condemned to
had the false accusation been established I n .

mos t cases the rule would sufce in a great

10 C r i m i na l C ode f
o tne y en/ s .

number it would be impracticable F or ih .

stance a no nen a priest that is was for

, ,

bidden to marry a woman who was d ivorced ,

or a widow wh o had performed the cere

mony of loosen ing the shoe of her brothe r in -

law S hould he in deance of th is prohibition

.

marry such a female his sons were debarred

from the priesthood Assu ming now that an
.

I sraelite Charged a nonen with being the issue

of such a uniona charge which if proved , ,

would remove hi m from h is o f c e and this

witness was subsequently convicted of per
j ury : 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 ! N o penalty i n such a case
is provided by the M osaic code Y et it .

could scarcely have been the intention of the

legislator to pun ish the l y ing witness in one
case and permit him to get off scot free i n
another The traditionary procedure clears
.

up the difculty S imilar difculties con

.

tinua l l y arise i n the practical application of

 I n tr oducti on . I I

m ost of the written enactments I n all thes e .

i nstances we are driven to the O ral L a w for a

satisfactory explanation T he H ebrew l a w
.

giver foresaw probably the awkward contin

e n c ies which would inevita bly occu r con
g
sequen t upon a hard and fast adherence to
ordinances formulated in th e Penta teuch an d ,

su ited only to the Circumstances and conditions

of the people under his personal guidance an d
supervision i n the Wilderness H ence h i s .

inju nction that th e J ews should immediately ,

upon their settlement in Palestin e appoint

them judges and o f c e rs i e form regular
, . .

courts for the administration of justice This .

of course n ecessitated the i nauguration of a

recogn ised mode O f p rocedure formulated i n
consonance with the traditions of the people ,

and varied as the exigencies of the nation

required and experience rendered a dvisable .

The nature of the arrangements made i n

compliance with the M osaic injunction can
be gathered only from the Talmud M . .

T h o nis s e n s essay upon the J ewish code r e

I2 C r i m i n a l C o de f
o t/ce y ea /s .

sembles most nearly that wh ich a foreigner

would write upon the E ngl ish criminal laws
after a perusal of our statute book ou r A cts - -

of Parliament disregarding such au thorities

as Blackstone and C oke and Bra c to n an d ,

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

i magined That M T h o n is s e n S hould u nder
. .

these Circumstances have failed is scarcely to

be wondered at .

M R a bb ino w ic z s failure is now to b e

.

accounted for H e has given to the world

.

a d isqu isition upon th e penal code of the

H ebrews i n the shape of a critical tra n s l a
tion O f the treatise S y nh e d rin and of such ,

portions of M a k k o th as refer to the pun ish

ment of criminals H e is h imself a profou nd
.

Talmudist ; but he does not make allowance

for those who have n o t the advantage of
being intimately acquainted with the rab
b in ica l authorities The Talmud be it O b
.
,
 I ntr od ucti o n . I3

served is essentially argumentative ; this

,

fact should consta ntly be borne i n mi nd .

The M ischna no sooner lays down an axiom

than a B e ra Ith a (precedent or tradition W hose
'

origin is coeval with those contained i n the

M ischna but which the editor of the last
,

named collection decided to om it ) is brought

forward to contradict it H ereupon the com .

m e n ta to rs set to work in order to harmon ise

the apparent inconsistency or disaccord A n .

opponent will then urge against the agree

ment thus established the O pin ion O f one of
the T h a na Im rabbins or heads of colleges
, ,

who were anterior to or contemporaries of

, ,

the editor of the M ischna The A mora i m .

doctors whose d isquisitions constitute the

G h e m a ra thereupon take up the discussion
pro and con F requently the arguments
.

term inate and apparently no conclusion i s

,

arrived at I t is this that renders the study

.

O f the Talmud so extremely difcult It .

seems impossible to understand which of the

views enunciated by the respective a uth o ri
 I4 C r i m i na l C ode f
o tne y e a /s .

ties we are to accept as decisive O nly .

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 com mentaries can deduce the laws
,

with any approach to accuracy .

M any points however are wholly unde

, ,

te rm in e d and probably always will remai n

,

u nsolved . I n givi ng a translation of the

treatise S y nh e d rin M R a bb ino w ic z has
.

therefore placed i n the hands of the reader

the material whence he may derive a know
ledge of the crimi nal la w S ome explana .

tions O f seemingly difcult points are given

-

but the student must pick h is own way with

out the training or help which would enable
him with prot to do so O f the multifarious
.

O pinions expressed he nine times ou t of ten

knows not which to choose H ence despite .

,

the undoubted ability of the author and the ,

acknowledged merit of the work itself D r , .

R a bb ino w ic z has not succeeded i n giving a

 I n tr od uc tio n . I 5

digest of the criminal law of the Talmud .

H is introduction is by far the best part of

the work ; but the views therein expressed
do not always merit complete and entire
a c ceptance We shall as we proceed in
.
, ,

d ic a te here and there the doubtful points ,

as they appear to u s of M R a b b in o wic z s

, .

summary .

H aving thus b riey by way of intro

,

duction explained the sou rce whence our

,

knowledge of the H ebrew 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
O f which it is composed we may proceed to
,

the consideration of this interesti ng j udicial

system .
1 6 C r i m i n a l C od e f
o tne 7ews .

C HA PTE R II .

THE DEV E LO P ME N T O F THE M O SA I C C O DE O BS O L ETE

LAWS THE LE ! T AL I O N I SPR E SCR I PT I O N S O F TH E
T AL M U D
.

T HE penal code of the H ebrews i n th e

Talmudic period had developed itself gra
d ually i n a manner somewhat sim ilar to the
A thenian criminal law in the days of D emos
th e n e s
. I n each of these legal systems we
can discover three elements superimposed .

I n the case O f the Greeks there had been

originally the laws of D raco formulated abou t
six centuries before th e C hristian era They .

consisted of a series O f religious ordinances

and traditionary practices These were sub.

sequently modied by S olon ; still further

amended i n all probability by C listhenes
after the triu mph of the Democracy Thi s .

period saw the i nstitution of p opular tribu

 IlIos a ic an d T a l m ud ic L a ws . I 7

na ls at A thens and the assimilation of the

,

mode of procedure i n civil and criminal cases .

Towards the end of the fth century B C the . .

progress of the state and the multiplying O f

partie s led to a further development of the
legal system O ne of the results of this by
.
,

the way was the appointment of a publ ic

,

prosecutor Three analogous stages of

.

growth though not qui te so clearly marked

i n the second epoch are discernible in the
development of the H ebrew laws as we n d ,

them formulated in the Talmud There are .

,

i n the rst place the M osaic injunctions

, ,

religious social and political which constitute

, , ,

the fou ndation of the scheme There are .

then the practical details as to the organ i sa

tion of the tribu nals These must have had .

their origin i n the early days of the J ewish

C ommonwealth ; most probably during the '

lifetime of J oshua O n e of the principal

.

commands l a id upon the I sraelites i n the

Wilderness was as we have already men
,

tio ne d to appoint judges i e establish co urts

, , . .

C
 C r i m i n a l C o de f
o tae yea /s .

for the administration of justice as soon a s ,

they were settled in Palestine ( Deut xvi . . .

L astly we nd in the Talmu d laws a ttr i

, ,

b uta b l e evidently to the peri od which inter

vened bet ween the destruction of the rst
and second Temples Abou t this time a
.

nu mber of the M osaic ordinan ces had b e

come utter anach ronisms S ome were per .

fe c tl y impracticable ; one or two were n o

longer even understood The exigencies of.

the age and the Circumstances of the people

necessitated t h e adoption of several enact
ments unknown to the Pentateuch Through .

out however the whole of the penal code of

, ,

the Talmud as i n its various stages O f de

v e l o pm e n t the D ivine origin of the H ebrew
legal system is n ever for a moment lost
sight of The abolition of a M osaic enact
.

m e n t is with the R abbins simply a state

ment that it has fallen into desuetude I n .

formulating a new law rendered necessary,

by the altered condition of their existence it ,

is invariably founded upon some principle or

 M o s a i c a nd T a l m udi c L a ws 1
.
9

other contained in the Written L a w or de ,

d uc ib l e from the general dicta therein laid

down by their inspired legislator L ike the .

Greeks The S ons of H esiod ,

gave to man justice the most precious of good

,

gifts the J ews i n the interpretation of their

,

ancient laws as in the application of new

,

ordinances were ever mindful O f the D ivine

,

source whence their system of j udicature

originated .

The M osaic prescriptions which in the ,

course of time had fallen i nto desuetude and ,

had in fact become altogether obsolete in ,

c l u d e many O f the most characteristic laws

of the Pentateuch A m ong su ch ordinances

.

was the inj unction which determined the

pun ishment of a stubborn and rebelliou s son .

O f this commandment the C hemara b y the

dicta of R abbi S i mon observes The !

Bibl ical law concerning a stubborn and r e

b e l l io us son never has been and n ever can be

pra ctically applied I f we n evertheless study

.

i t it is simply as one d oes a literary ex

,

c 2
20 C r i mi n a l C ode of tne Yews .

e r c is e .

S imilarly the M osaic enactment in
, ,

accordance with which a city given to idol

atry was ordered to be destroyed had b e ,

come a pu re anachron ism in the latter days

of the J ewish nationality According to the .

Talmud th is law could not have been carried

,

into effect at any period A nd the penal .

code further took no longer a ny cognisance

of a large class of O ffences known as acts of
omission An extremely important ord i
.

nance of the Pentateuch concerning the pu

n is h m e nt of perjurers was imperfectly u nder

stood by the R abbins The apparently simple .

law which determi ned the penalty incurred

by witnesses whose evidence was proved to
be false was beset with d ifculties and found ,

inappl icable to the times The G h e m a ra .

declares through R abba that th e M osaic

injunction which conde m ns the witness who

i s p erjured by proving an alibi against him
, ,

is a lcido us c/c a law we are n ot able to ex

plain o r comprehend .

Among th e ordinances of M oses of wh ich ,

 M osa ic a n d T a l m udic L a ws . 2 I

no trace is to be fou nd in the Talmud is th e ,

s o C alled l ex
-
ta l i o n i s M ore nonsense has
.

probably been written respecting th is law of

retaliation ( which crops up in every code
of antiqu ity) than would ll the proverbial
bushe l a g oodly nu mber of times I t is gene .

rally quoted as satisfactorily demonstrating

the harshness an d severity of the punish
ments ordained in the Pentateuch .

M ore than one theological school con

s ider the dicta eye for eye tooth for tooth ,

as the very qu intessence of J ewish legisla

tion The O diu m attached to the M osaic
.

c o d e on account of this law furnish es a n

, ,

other illustration o f the vulgar adage about

giving a dog an ill name C uriously enough.
,

there i s a remarkable parallel to this miscon

c e tio n i n the case of the Athenian j urist
p
Draco H is code is fabled to have been
.

written i n blood ; death was the least of the

pu nishments he inicted H is name has fur.

nis h e d an appellation for all that is harsh

even to cruelty u n m erciful even to barbarity
, .

22 C r i m i na l C o de o f tae 7ews
_
.

Y et what is the truth P

H is laws relating to
homicide (graven on a pillar at Athens ) con
tinu e d in force as long as the city was inde

pendent A murderer was perm itted u nder

.
,

this code to y i n order to escape the ven

,

e a n c e of the family of his victim S entence

g .

of exile could be pronounced by the judges

i n cases of manslaughter Degradation from
.

the rank of citi zen was one of the penalties

of his system .A n d more remarkable still ,

Pollux ( ix 6 1 ) distinctly says that the ne

.

for slaying a man w a s ten oxen ! S O much

for the reputed severity of the D racon ic
L aws . The ridiculou s and wholly absurd
nature of the prej udice anent that bugbear
of th e F ive Books of M oses the law of r e ,

talia ti on is even more unfounded than i n the

,

case of D raco .

The l ex ta l i o n is was simply a law by

wh ich a person deliberately and purposely
and mal iciously i nicting upon another cer
tain speci ed inj uries was l iable to have
,

si m ilar injuries in fl ic ted upon his own person .

 M os ai c an d T a l m u d i c L a ws . 2 3

This penalty was directed against a mode of

vengeance extremely prevalent i n ancient
days M utilation dismemberment and simi
.
, ,

lar eccentricities of our progenitors the chil ,

!

dren of the world were common methods ,

of hurting one s supposed e nemies especially ,

i n eastern lands There such practices are

.

by n o means forgotten even now The O b .

c t O f the
j e c ri minal w a s to palpably and
visibly d is g u re or emasculate h is victim I n .

such cases what would have been the deter

rent effect of a pecuniary indemnity of inc a r ,

ceration or even of c orporal pu nishment i

,

N one whatever where a man had determ i ned

,

upon injuring his O pponent in a manner s u f

c ie n tl conspicuous to d isgrace or dishonour
y
him N othing b ut the l ex ta l i o nis was likely
.

to prove of service in preventing the commis

sion of such inhu man and das tardly o u trages .

That the law was not otherwise applied by

any nation we have ample evidence to S how .

A mong the Greeks for instance who in , ,

cluded this enactment in their ancient code ,

24 C r i m i n a l C o de o
f tne y e n/s .

E vil for evil says IE s c h y l us was the sen

,

tence of ancient days ) on e O f the pri ncipal

functions of the second of the A thenian tribu

n a l s was to arrange between the murderer

and the parents of h is victi m the payment of

the blood money authorised by thei r penal
-

laws To suppose that a man guilty O f a

.

capital O ffen ce should be condemned i n a

pecu niary penalty while one accidentally in
,

j uring his n eighbour was subject to the !ex

ta l i o n is would be the height of abs u rdity
, .

A mong the H ebrews the necessity for pre

serving th e law of retaliation as part of the
legal code had disappeared long before the
Talmudic period I n accordance with their
.

t aditions all cases of assault or wou nding

r
,

were punishable by nes the O ffender making ,

full and ample indemn ity to the person hurt .

W ith regard to the new laws formulated

i n the Talmud and of which n o trace what
,

ever is to be discovered i n the Pentateuch ,

there is one of the utmost signica n ce ; one

that will admi t of a very simple explanation ,
 M o s a i c a nd T a l m ud ic L a ws . 25

though M R a bbin o w ic z i n his introduction

.
,

before alluded to seems to misapprehen d it

,

somewhat I t is the law requi ring evidence

.

that a warning was given to th e individual

about to com mit a cri me that the act he con
,

te m pl a te d w a s an offence entailing such and

such a pun ishment or penalty The B ible .

knows nothing whatever of such a proviso .

I t requ ired merely the testimony of compe

tent witnesses as to the fact that a cri me had
actually been com mitted ; and that the sai d
witnesses had detected the accused i n a
r a n to d e l i cto C ertai n f the R abbins how
g . O ,

ever seem to a ssert that to ensure conviction

,

in a cap ital trial it mu st be proved that the

,

culprit prior of course to the perpetration of
the O ffence 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

deat h he was liable to suffer if convicted
This certainly is a very remarkable pro
vision if i ntended to be construed as Dr .
26 C r i m i n a l C o de f
o t/ce Y ea /s .

R a b b in o w ic z
points out H e regards this law
.

of the Talmud as purposely enacted in order

to abol ish altogether the pun ishmen t of death .

I t would of course have this effect F or no .

individual would be l ikely to inform h is

friends or neighbours or acquaintances that
, ,

he was about to comm it a murder The o p .

o r tun it to give h im this preliminary warn

p y
i ng would never i n point of fact occur The
, , .

same of adultery or seduction with violence

, ,

crimes which were also pu nishable 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 R abbino

. .

w ic z we would u rge two very simple facts .

I n the rst place the ordinances and pre c a u

tions of the Talmud were already and

without the pro viso referred to more than
su fcien t to prevent the s entence of death
from be ing pronounced except in extremely
rare cases A nd in the secon d place the
. ,
 M os a ic a nd T a l m ud ic L a ws . 2 7

O p in ions of many of the T h a na i m are as we ,

shall i n the proper place fully explain O p ,

posed to the assumption of D r R a bb in o w ic z

. .

The true purpose and object of this curiou s .

Institution of the Talmud will then appear .

28 C r i m i na l C ode f
o tne y e n/ s .

C HA PTE R III .

THE C O N S TIT U TI O N O F THE C O URT S THE Q UAL I F I CA

TI O N O F J U DGE SP E RS O N S DI S Q UAL I F I ED .

FO R the administration of justice there existed

among the H ebrews three kinds of tribunals :
1 Petty courts composed O f three judges an d
, ,

competent to adj udicate upon civil causes

only ; 2 The provincial S y n h e d r in consisting
, ,

of three and twenty members and having

- -
,

criminal jurisdiction as well as the power of

deciding in ordinary matters ; and 3 The , ,

Great S y nh e d rin of J erusalem which was the ,

supreme authority of the nation I n contra .

disti nction to the practice of every oth e r

ancient nation the K ing among the J ews
, , ,

was not permitted to exercise judicial func

tions U nlike the H igh Priest he could
.
,

neither judge nor could he be j udged N or .

 O rg a n i sa ti on f
o tne T r iou n a l s . 29

had the S overeign any voice prerogative or , ,

inuence i n the appointment of the j udges ;

nor was it for him to i nterfere i n any way
with the organ isation of the various tribunals .

The people alone had the right to nominate

the members of the S y nh e d r in The scheme .

of legal admin istration was based on the

representative system and what we should
nowadays term u niversal suffrage I n the .

case of the petty courts for the trial O f civil

processes the mode of appointment was e s
s e n tia l l primitive and simple The plaintiff
y .

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 O f course these tribunals
.

were not permanent They sat only when

.

required .

I n th e case of the courts of criminal j uris

d iction the mode of organisation a nd the
manner i n which they were constituted
were as follows z E very town i nhabited by
one hundred and twenty families could have
 C r i m i na l C o d e o
f tne ye ws .

a S y nh e d rin of three and twenty members- -

To each place thu s qual ied the Great S yn

h e d rin of J erusalem sent an order bidding the
residents assemble and n ominate from a mong
themselves such as were learned and modest

and popular . F it representatives and apt
were accordingly elected A retu rn was
.

thereupon made to the Great S y n h e d r in and ,

the supreme body im m ediately despatched

an authorisation in conformity with custom
, ,

which con stituted the d elegates named a cor

ra te S y n h e d r in A s a rule these tribunals
p o .

i n the smaller towns sat only occasionally for

j udicial pu rp oses But i n large and im
.

portant ce n tres there were necessarily per , ,

m anent courts In those cities where rabbini

.

cal colleges were established for the study O f

the law such institutions by a natural transi
, ,

tion and development came to be charged ,

with the administration of justice S uch for .

,

example were the academies O f J abneh

, ,

u nder th e famous Gamal iel ; O f Beni B erak .

under R abbi A kiba ; of L u d u nder R abbi ,

 07g a n isa tio n f
o t/ze T r i oun a l s .
3I

E lea zar ; of S ik h n i u nder the direction of

,

H ananya ben T ra d y o n .

I n J erusalem there were three S y nh e dr in

two ordinary of twenty three members each
,
-
,

and the Great S y n h e d ri n of the nation con ,

sisting of seventy one of the most em inent

-

j udges of the country The rst sat in that .

part of the Te m ple called the H ar h a b a ith -

the second i n the court known as the

,

A zara ; and the supreme cou ncil in the L ish

kat h a g a zith The rst consisted O f members
-
.

sel ected from the various provincial S y nh e

drin ; the second was recruited from the rst ;
and the Great S y n h e d rin in tu rn lled up , ,

any vacancies in its numbers from those who

composed the second This completed the .

administrative system of the H ebrews for

j udicial purposes The organisation was ex
.

ce e d in l simple eminently representative

g y , ,

and it seems to have been thoroughly e ffe c

tive E very su itor found at his own door a
.

tribunal competent to hear and decide his

plaint without delay or expense ; criminals
32 C r i m i n a l C ode f
o tne y en/s .

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 S yn

,

bedrin to wh ich appeals could be made from

the sentence or decision of the local court .

U nder this scheme every man every

J ew that is m ight aspire to the dignity of a
,

judge I n order however to prevent any

.
, ,

but competent and well q ua l i e d persons -

from being appointed to the various tribu nals

ample precautions were taken I t was not .

necessary in the case of the provincial S yn

h e d rin to guard against sheer inefciency .

N O I sraelite could be absolutely ignorant of

the law I t must be remembered that educa
.

t ion was well advanced among the H ebrews ,

especially after the rst or B abylonian cap

tiv ity .A system of compulsory instruction
had been introduced by J oshua the son of ,

Gamal a There was a school board for each

.
-

d istrict E very child more th a n six years

.

of age w a s obliged to attend the co mm unal

 O rg a n is a ti o n f
o tne T r iou n a ls .
33

schools u nless receiving private lessons at

,

home from qualied tutors S u c h i mportance .

does the Talmud attach to the training of the

young that it enters into the minutest details
upon the subject F rom his earliest years
.

the J ewish boy was a diligent student of th e

B ible I t was his primer and reading book
.
-
.

I ts laws and tradition s were almost as fami

liar to hi m as his o wn existence they formed
part and parcel of h is every day experience -
.

I n riper manhood he attended each even

ing after labour the expositions of the S crip
ture O n S abbaths on festivals and on the
.
, ,

morn ings of M onday and Thursday he was ,

present as a religious duty a t the public read

ing and interpretation of the law .

A J ew could not but be well acquainted

with the leading principles of his legal code
and their general appl ication H e was i n .
,

fact competent to decide much as ou r j us

,

tices of the peace are any ordinary infractions

of the law likely to occu r in his own district .

But to become member of a S y nh e dr in having

D
34 C r i m in a l C o de f
o tne Yews .

extensive cri m inal j urisdiction to be qualied ,

to act as judge in a trial involving the life

or dea th of a fellow creature was another
-
,

matter H ere legal acumen proved ability

.
, .

sound knowledge and u ndoubted i ntegrity

,

were required S uch men learned i n th e

.
,

law and versed in science might s ub s e

quently be admitted into the S y n h e d r in O f

J erusalem the sup reme council of the na
,

tion . Th e sta ndard of qual ication wa s

therefore necessarily high in every particular .

A ccord ingly whe n a man date from the capi

,

tal authorising the formation O f a crim inal

tribunal arrived in a town the residents took
,

every precaution to nominate such men whose

antecedents and acqu irements guaranteed
their tness for the posts they were to occupy .

The election of representatives incompeten t

and inapt m i g ht have been followed by a
refusal of the certicate of legality from the
Great S y nh e d r in .

F ew t hings are more remarkable i n the

H ebrew penal code than the clauses by which
 O rg a n is a tio n f
o tne T ri oun a l s .
35

certain persons were d isqualied from acting

as judges u nder any circumsta nces whatever
,
.

All who made money by dice playing by -

,

any games O f ha zard by betti ng on pigeon

,

matches and similar obj ectionable practices

, ,

were not only incapable of becoming members

.

of a tribunal but were not permitted to give

,

evidence in a trial The G h e m a ra regards a

.

man who gains money by the am usements

named as actually dishonest A J e w who .

was in the habit of lending money upon

usu ry was in like manner d isqualied The .

d isqualicatio n extended not only to those

who took interest of their brethren but even ,

to cases where the money had been borrowed

by a heathen N or could a slave dealer sit
.
-

as judge The Talmud stigmatises such a

.

person as i nhuman and unfeeling and inca ,

pa b l e therefore of deciding an issue involving

the life or l iberty or even property of another .

O f course this ordinance applied to the traf c

i n human creatures who were not J e ws ; the
kidnapping O f an I srael ite being punishable
D 2
36 C r i m i na l C o de f
o tne yen s/ .

with death The following were also regarded

.

as jud icially incapacitated those who dealt i n

th e fr u its of the seventh year for they could ,

not be deemed conscientious those who were

in any way concerned in the cause to be adju
d ic a te d u pon for they were interested ; all
,

relatives no matter what the degree of con

,

sangui n ity of the person accused ; all who

,

would inherit property fro m the crim inal who

was on trial or would benet by his c o nde m
,

nation or loss ; and persons who had been

guilty of seduction or the lesser form of adul
te ry which was pu n ishable by ne or ogging .

O ne other disqualication noteworthy i n ,

its way also existed A man who had not

, .
,

or had never had a xed O cc upation trade

, , ,

or bu siness by which he earned a livelihood

, ,

was not allowed to act as j udge H e wh o .

neglects to teach his son a trade say the ,

rabbins is as though he ta ught him to steal

,

.

S uch a lad had no resource in manhood but

to beg or r o b A man without a c alling or
.

profession was moreover regarded as not cal !

 O rg a n i sa tion f
o til e T r ioun a l s .
37

c ul a te d
to have consideration or sympathy

for those exposed to the hard contingencies

of life I n trials where capital pu nishment
.

m ight be in icted i n case O f Conviction the

following also were disqualied A n aged
man because his years and in rm itie s were
,

likely to render hi m harsh perhaps obstinate ,

and u nyielding ; a j udge who had never had

any children of h is own for he could not ,

know the paternal feel ing which should warm

h im on behalf of the son of I srael who was
i n peril O f his life ; and a bastard ; not an

illegitimate son for such a relationship could
not exist among the J ews but one born of a
forbidden or crim inal connection N or u nder .

any circums ta nces was a man known to be

at enmity with the accused person permitted
to occupy a position among h is judges S uch .

enmity was by the way presumed to exist

, ,

when the j udge or witness had not spoken to

the person charged with any o ffence for a
period of more than three days .

According to M a s s e c h e th S y nh e drin ,
38 C r i m i na l C ode f
o tue 7 e ws .

m en tal qualities and intellectual acquirements

of n o ordinary character were necessary to
constitute a competent j udge H e was i n .
,

the rst insta nce to be modest of good re

, ,

pu te among his neighbours an d generally ,

l iked H e must have been i ntimately a c

.

u a in te d with the written enactments of

q
the lega l code its traditional practices the
, ,

precedents of the colleges and the accepted

,

decisions of former j udges H e must have .

studied not alone the laws applicable to th e

times in which he l ived but th ose wh ich from
,

altered circu mstances had fallen into desue

tude H e was requ ired to be a procient in
.

variou s branches of scientic kn owledge e s ,

e c ial l i n m edicine and astron omy That

p y .

the rabbins were well grounded in physiology ,

patholog y and such modes of chemical and

,

organic analysis as were then understood can

be shown by many in stances Thus we nd .

R abbi I smael and his pupils engaged in dis

section in order to study the anatomy O f the

human frame ( Be k o ro th ) Bab a bar Bo uta h
 O rg a ni s a ti o n f
o u T r i un a l s .
39

( G h ittin
)
is recorded to have demonstrated ,

i n a case be fore h im that a witness had ,

attempted to impose upon the court by ,

bringing the albumen of an e g g an d falsely ,

representing it to be spermatic uid An d .

the Academy of H illel is sai d to have con

ta in e d among its disciples eighty who were

acquai nted wi th every branch O f science

known in those days A knowledge of lan
.

guages too was i ndispen sable fo r those who

, ,

aspired to the me mbe rship of a S y n h e d rin .

The services of an interp reter were never

pe rmitted The judges
. were therefore bound
to be acquainted with the tongues of the
neighbo uring nations I n the case of a .

foreigner being called as witness before a tri

bunal it was absolutely necessary that two
members should u ndersta nd the language i n

which the stranger s evidence was given that
two others should be able to speak to him ;
while another wa s requ ired to be b oth able
to understand and to converse with the wit
n ess . A maj ority of three judges could
 C r i m i n a l C o de o f tne 7e ws .

always thu s be O btained on any doubtful

point in the interpretation of the testimony
s ubmitted to th e court A t E ither there
.

were three rabbins acquainted with every

language then known while at J abneh there
were said to be four similarly endowed with

the gift of all the tongues .

A s regards the general ability of the

j udges R abbi J e h ud a asserts that they should
,

be such apt and skilful logicians that they could

demonstrate from the written text of the Pen
ta te uc h itself that all the reptiles therei n de

c l a re d to be impure were pure I ndeed to ,

those acquainted with the Talmud nothing ,

i s more startling than the resources of argu

ment displayed by the rabbins That it is i n .

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 A nd .

their intellectual acumen their logical powers

, ,

were employed on behalf of th e crimin al ,

 O rg a n i s a ti o n f
o tne T r i u n a l s .
4 1

whose advocates the j udges themselves were .

O f this we shall see more later on .

When therefore the Talmud in sisted

, ,

upon a h igh standard of qua l ic a tio n for th e

members of the S y nh e dr in it was animated ,

n o t alone by a due and proper regard for the

dignity of the judicial o fce but by a merci ,

ful consideration for the O ffender and a desire ,

to secure for one whom they looked upon

as an unfortunate brother the advantage of ,

skilful acute a nd learned counsel

, , .
 C H A P TE R IV .

THE C O N S TIT U TI O N O F THE C O U RT S DI V I S I O N O F

AUTH O R ITYPR O C ED UR E .

T HE ju risdiction exercised by each of the

three kinds of tribunals engaged in the adm i
nis tr a tio n of the penal laws was clearly de

ned A conict O f authority was impossible

. .

E ach court took cognisance of certain speci

e d offences and of these only ; each court
,

possessed the power of inicting certai n

punishments or of imposing certain penalties ,

and none othe r E ven the amou nt O f ne

.

or indemn ity payable i n the maj ority O f cases

was already determined by written enact
m ent A nd where this was not so xed or a p
.

proximately indicated th e constitution O f the

,

tribunals permitted of arbitration and an ,

estimate O f the pe nalty incurred by an O ffende r

could readily be arrived at .
 y u r is dicti on of tne C o u r ts .
43

Before describing the authority and privi

leges attached to the respective tribunals it
is necessary to note that owing to the pre
,

s c r i tio n s O f the M osaic code the c l a s s i ca

p ,

tion of crimes among the H ebrews was some

what d ifferent to that generally prevailing i n
modern times Many offences which i n our
.

days are considered to infringe only the

moral code were regarded among most a n
cient peoples i n a very different light S uch .
,

for example are adultery and idolatry

,
.

These among the J ews entailed death .

Again many crimes now generally punish

,

able with imprisonment were accordin g to ,

the H ebrew laws only punishable by ne or

,

pecun iary indemnity to the prosecuting party .

A mong these are theft of all kinds assaults , ,

injuries to the person and damage to pro

,

perty .

A nother large class of O ffences wa s u n

known to the J ews There were in Pales
.

tine n o game laws ; there could therefore be

no poaching The relief O f the poor wa s
.
 C r i m i n a l C ode of t/ce yen/s .

co m pulsory ; there was no pilfering I t was .

permitted to enter a neighbour s garden or

orchard or vineyard and eat one s ll petty
larceny and trespassing were therefore im po s
s ib il itie s almost in rural districts H ence the
.

penal code of the H ebrews dealt practically

with a comparatively small number of o f
fences briey specied clearly dened and
, ,

entailing in each case a xed punishment or

penalty which could not be varied
, The .

j urisdiction of the respective courts admitted ,

therefore O f easy denition The ordinary

,
.

tribunals composed of three judges a dj ud i

, ,

c a te d summarily upon all cases of assault all ,

cases of theft all cases of robbery with vio

,

lence and all cases of i njury to person or

,

damage to property I n fact all crimes e m

.
,

tailing pecuniary penalties upon those con

v ic te d O f their commission were tried before

the courts of three members I n every in .

stance it was deemed an advantage in later ,

Talmudic times to have at least one m umcna

,

( authorised j urist ) among the three The .

 7u r is d icti o n of til e C o u r ts .
45

presence of such a rabbin added of course to , ,

the local repute of the court in which he sat .

I t may be worth wh ile pointing out here that ,

apart from the lega l jurisdiction pertaining to

them these bodies performed when requ ired
,

certain other functions some of them sem i

,

rel igious 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 cou rt of equ i ty ;
they could pronounce j udgment in ordinary
business litiga tion ; they could absolve an
I sraelite from a rash vow ; and (a rather
di fcult task if the J ews of old resembled i n
,

some respects their modern representatives )

they could declare the personal worth of a
H ebrew when he had sworn to give an equ i
valent sum to the Te m ple .

A S y nh e d r in of three and twen ty mem

- -

bers was competent to judge all criminal

cases involving ( 1 ) capital punishment ; ( 2 )
,

internment in a city of refuge ; ( 3) imprison

ment or seclusion for l ife ; and ( 4) corporal
46 C r i m i n a l C o de o f tne 7
ezo s .

punishment To these four classes of

.

offences belong murder adultery blasphemy

, , ,

i dolatry incest manslaughter and seduction

, , ,

with violence A n animal ( an ox that had

.

gored a man so that he died) was also con

d e m n e d to be slaughtered by a tribunal of
three and -twenty judges The beast was i n
-
.

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 cou rt in such

cases . The S y nh e d rin ( like the smaller
courts of three) sat whenever occasion re
qu ired and always en per ma n en ce on M on
,

days and Thursdays These days were se

.

l e c te d for the regular admin istration of j ustice

on accou nt of their convenience to j udges ,

suitors and the public O n the mornings

,
.

named the inhabitants of the outlying dis

tr ic ts and suburbs came into the towns for

the purp ose O f attending the reading of the

law in public assembly E very adult ma le .
,
 7 u r is di ctio n f
o tne C o u r ts .
47

unless incapacitated by sickness was present ,

on these occasions H ere then was an ex

.
, ,

c e l l e n t opportu nity for the settlement of dis

putes and the trial of offenders But there .

were other reasons for the regular b i weekly -

meeting of the S y nh e d rin These courts of

.

three and twenty members constituted th e

- -

local governing body of thei r d istrict or divi

sion Their functions were important and
.

multifarious They estimated the amount of

.

the taxes to be imposed they organ ised the

distribution O f communal charity they were
charged with the ma n agement and a d m in is
tra tio n of the public elementary schools ; they

saw that weights and measures were care

fully inspected from ti me to time a fxing ,

their seals to all legal standards ; they con

stru cted examined and repaired the defences
, ,

of the walled towns ; they w ere the local

highway board they were san ita r y a uth o r i
ties ; they discharged the thousand and one
duties of local government .

The mode of procedure in ordinary trials

 C r i m i n a l C ode f
o tne 7
ezo s .

was very simple The prosecutor attende d

.

before the S y nh e d rin and lodged h is com

plaint the ofcer appointed by the court for
that pu rpose sought the accused person and
brought h im before the tribunal The wit .

nesses were summoned and heard Both .

parties then quitted the hall where the trial

took place . The j udges deliberated an d ,

afterwards readmitted the prosecutor and

the defendant J udgment was then pro
.

n o u n ce d
. N O advocates were heard ; the
members O f the tribunal deeming it meri
to rio us to exercise the utmost ingenuity in

order to discover mitigating facts or ex

te n ua ting circumstances when the law was

clea rly against the accused R ight of appeal

.

existed and had to be acted upon within

thirty days of the original hearing I n such .

cases the cause was taken to a neighbouring

S y nh e d r in which
,
from its containing a
,

greater number of more learned and pra e

tis e d j urists was deemed of superior a uth o
,

rity I n all instances whether the trial was

. ,

before a full cou rt or an ordinary tribunal of

 7 u r i s d i c ti on o f t e C o u r ts .
49

three the reasons and argume n ts upon which

,

the d e c i s Io n was founded had to be c o m m u

micated to the suitors But on the other .
,

hand the fact of there havi n

, g been any
dissentient j udges among the members was
always carefully concealed . A s a natural
consequence the sentence pronounced was
r egarded as the unanimous decision of the

tribunals . D issatisfaction was thus dis

c o ura e d
g and
,
appeals were probably as ,

o n e of the rabbins states of infrequent occur ,

rence .

The Great S y nh e d rin O f J erusalem con ,

sisting of seventy one members was as the

-
, ,

supreme council O f the nation the highest ,

court of crim inal j urisdiction Th is impor .

tant body and this body only was competen t

, ,

to judge ( I ) a H igh Priest against whom an

accusation had been preferred ; ( 2 ) a false '

prophet ( 3) a C ity given to pagan practices

and ( 4) an entire tribe I n th e legal a dm in is
.

tra tio n O f the H ebrews the principal du ties

devolving upon the grand tribunal of the

 C r i m i n a l C o de o f tne y e ws .

capital were : to exercise a Species of super

vision over the provincial S y nh e d r in ; to
grant the certicates authorising their con
s titu tio n and conrming their legality ; to
furn ish precedents and traditions whenever
required by the subordinate courts and to ,

give satisfactory interpretations of doubtful

and difcult points I f a case civil or
.
,

criminal was brought before an ordinary

,

tribunal of three and twenty j udges an d

- -
,

these found themselves without a registered

decision which enabled them to pronou nce
an authoritative sentence a statement of ,

the facts was carefully prepared and sub

m itte d to a n eighbouring S y n h e d rin supposed
to be O f greater repute I f these found a r e
.

corded precedent o r accepted j udgment i n an

an a logous case it was explained to the dele
,

gates O f the other court I f on the other .

,

hand n o such tradition was forthcom ing

, ,

appl ication was made to the rst of the

S y nh e d r in i n J e rusalem that sitting in the
,

H ar h a b a ith S hould these nd themselves

- .
 7
j u r is di ctio n
f
o tne C o u r ts .
5I

unable to give the required assistance an ,

appeal was made to the second S y nh e d r in ,

located in the A za ra h I f again th is court

.
, ,

was not in possession of a sati sfactory trad i

tion the matter was brought before the Great
,

S y nh e d r in
. I n all cases where n o precedent
existed thi s body decided in accordance with
justice and equ ity The case was laid before
.

them carefully discussed and a fter due de

, ,

l iberation th e assembly voted The views of.

th e majori ty were considered binding N o n .

compliance with a judgment of the Great

S y n h e d r in was pun ishable with death An .

elder or judge who acted or taught in

, ,

contravention O f the decisions of this augu st

council was by the M osai c code to be con
dem med to die The Talmud made a notable
.

distinction in the application of this law I f .

the heterodox teaching of the recalcitrant

individual was directed against an injunctio n
of the Pentateuch he was not condemned ;
if against the tradition or precedent or i nter
, ,

r e ta tio n of the S y nh e d r in he could be capi

p
E 2
 C r i m i na l C ode f
o tne 7e ws .

tally convicted This apparently places the

.

dicta of the rabbins above the words of the

sacred and insp ired text The explanation .
,

however is simple C ontrary to the received

, .

impression that the Talmudists adhered to

the letter and neglected the spirit of the L a w ,

the reverse was the case They investigated .

the motive and endeavoured to ascertai n

the object of each enactment N ow M oses .
,

wished only to prevent an elder from lead

ing the people astray by teaching what was
illegal A lawyer who nowadays advised a
.

Client that forgery and embe zzlement were

under certai n circumstances not criminal
would scarcely succeed i n deceiving the
most addle pated individual who came to
-

h i m for counsel ; but the same authority

might do serious inj ury even to educated ,

men by misrepresenting the decisions of the

,

law cou rts on matters of com m on interest

-

or private concern S O the rabbins argued

.
.

A n elder who taught i n opposition to an

explicit co m mand of the Penta teuch could
 7u r isd icti o n of tne C o u r ts
'
.
53

do little or no harm for everybody knew

,

the injunctio ns of M oses ; but he who m is

interpreted to his commu nity the decisions
O f the S y n h e d rin might cause irreparable
m ischief to his brethren generally H ence .

the practice of the Talmud The Great

.

S y nh e d r in at J erusalem possessed likewise

the power to condemn or exile i n times of
danger or for the public good any person
, ,

who was considered dangerous to the com

mu nity N o tribu nal it must also be noted
.
, ,

could try or punish a person for an offence

perpetrated in its own presen ce I f a murder.

was committed i n full view of a S y nh e dr in ,

the criminal had to be taken before another

court of three and twenty judges in order to
- -

be examined and if found gu ilty convicted

, .

I t will be seen that a trial before a S yn

b edrin was virtually a trial by ju ry The .

members of the court were moreover the

prisoner s cou nsel as well as his j udges .

They sought to interpret the law in his

favour ; failing th is they endeavoured to
,
54 C r i m i na l C o de o f tne y
ea /s .

nd extenuating circumstances A s ju ry .

men they could make such recommendations

of mercy as their own feelings dictated : as
j udges they could give practical effect to
these recommendations I n fact the trial
.
,

was a trial by j u ry without the anomalies

which i n modern times distinguish th e func
tions of this venerable and u seful institution .

Those who are j udges of fact a nd belong ,

presumably to the same social class of the

community as the prisoner before them ,

should also i n j ustice be the best judges

, ,

of the degree of culpability attached to the

com mission of any particular crime With .

the m inimum and maximum O f pun ishmen t

-

which the law perm its placed before them ,

the ju ry wh o nd the accused guilty should

i n equity determine the sentence to be pro
no u nc e d. M odern codes relegate th is power

i n criminal cases not in civil causes to the
j udge The results are extremely curious ;
.

were it n ot for the gravity of the wrong

inicted one m ight add diverting I n most

,
.
 7 u r is dicti o n o
f tne C o u r ts .
55

ancient penal systems the j udge was regarded ,

and very properly as competent to decide

,

upon matters O f fact as well as in questions of

law But the right to apportion punishment
.

was not always conceded to him I n the .

best days of the R oman R epublic the Q ues ti o

perpetua presided over the trial of a criminal ;
but the jury the citi zen judges numbering ,

thirty two or forty or n inety or even a

-
, , ,

hu ndredconvicted the prisoner and pro

n o un ce d the sentence of death The pre .

s iding magistrates were i n reality but legal

assessors or advisers I n the H ebrew sys
.

tem such division of labour was rendered

un necessary The members of a S y nh e d r in
.

were i n themselves the judges as well as the

j ury ; and the characteristi c religious bias
of every I sraelite the desire to emulate the
,

m idda tn r a k /za m i n the heavenly attribute

of mercy was of O bvious effect I t led .

them in every instance to place the most

favou rable construction possible upon the
conduct of an erring brother .
 C r i m i n a l C od e f
o tne y ea /s .

C H A PTE R V .

TH E RUL E S O F E V IDE N C E .

T HE rules of evidence as formulated i n

,

the Talmud are of a remarkable character

, .

They are i n most respects unlike those of

any ancient legal code ; and are diametri
cally opposed to our modern E nglish pra e
tice i n every important particular The .

primary object of the H ebrew j udicial sys

te m w a s to render the conviction of an inno
.

cent person impossible All the ingenu ity of

.

the J ewish legists was directed to the attain

ment of this end E verywhere the punish
.

ment of the guilty seems subordinated to this

principal consideration The credibility of
.

witnesses must be established beyond doubt ;

their impartiality must be placed above sus
p ic io n the likelihood of prej udice animating
 T d e R u l es o f E o i den ce .
57

any person testifying against a prisoner must

be carefully sought out The adm issibility.

of evidence was determined by a series of

stringent reg ulations disqualifyi n g i n each case
a number of individuals from coming forward
as witnesses N 0 man could incriminate him
.

self ; nor could a wife give evidence against

a husband ( Among the H ebrews a b e
.

trothed girl was regarded by the law as a

married woman ) O n the other hand a
.
,

prisoner was not debarred from testifying

i n his own favour ; any argument he wished
to u rge irrespective of its legal worth was
, ,

heard by the j udges R elatives including

.

many allied by marriage and nearly all ,

those allied by bloodwere incompetent to

appear as witnesses Grandchildren formed
.
,

however an exception to this rule Those

, .

standing i n l oco p a r en ti s to the accused at

the time the alleged offence was committed
or when the trial commenced ; the s nusn i n
best man groomsmanduring the seven
,

days of marriage ; an enemy i e one who , . .

 C r i m i n a l C ode f
o t/ze yews .

had not spoken to the prisoner for a period

of three days owing to dislike or hatred or
,

on account of differences ; a creditor ; any

person to whom th e accused had lent
money ; all who publ icly and derisively
af r a s e acted i n contravention of the M O
saic laws regarding foo d cleanliness an d, ,

decency ; all such as had been convicted

of attempting to wrong or defrau d a neigh
bou r ( the Talmud regards such persons as
worse than those who si n against H eaven
only) these and all others who were dis
,

qualied from acting as j udges in a Cause ,

were declared incompetent to appear as wit

nesses The rabbins carefully made allowance
.

for h u man weakness and natural promptings .

They did not expose relatives to the te m pta

tion of violating the sanctity of their oath ;
an d they spared father or son or brother
, ,

the pai n of being compelled to speak the

damn ing word which should consign perhaps ,

to death , one near and dear to them Thus .

,

the partiality of friends the affection of

,
 T ne R u l es f
o E vi d en ce .
59

relatives or the enmity of opponents could

, ,

in no wise affect the issues of a trial .

The mode of examining witnesses as ,

prescribed by the H ebrew code is probably ,

without a parallel I t consisted i n the a b

.
,

s o l u te l essential portion of a series of

y ,

leadi ng questions propounded by the judges .

These questions were xed by law and n o ,

deviat i on was permissible There were two

.

sets of questions : the rst known as the ,

H a k ira h investigation as to time and place ;

,

the second termed Bedikah investigation as

, ,

to relevant circumstances and corroborative

facts The fundamental principle of the
J ewish law of evidence was that the testi
mony against a prisoner should if it be false , ,

admit of being overthrown by proving an

alibi against the witness entailing upon the
,

perjurer the penalty of death in all purely

criminal cases . This condition was a b s o
l ute l y essential . I t is clear that the only
statements capable of being contradicted i n
this manner must conne themselves to de
 C r i m i na l C ode f
o tne y
e n/s .

tails as to time and place ; that is the evi ,

dence must simply declare that the witness

saw the crime committed at a certain hour ,

on a certai n day i n a specied place S uch

, .

testimony only was considered satisfactory .

The H a k iro th consisted of seven questions

- never more never less put to each wit
,

ness privately and i n the absence of othe r

,

witnesses .

The appoin ted members of the S y n h e

dri n as a necessary p reliminary asked the
, ,

person about to give evidence whether he

a ctually saw the accused comm it the crime

with which he was charged O n receiving .

an answer i n the a f rmative the H a k iro th

( )

were put in the following order I I n
what S c h e m ita h cycle of seven years

reckon ing from the last J ubilee was the

( )

offence perpetrated ! 2

I n what year

of the S c h e m ita h ( )

3 In what month

( ) O

of the year ! n what day of the
4

( ) O n what day of the week

month ! 5

( 7)

( )
6 A t what hour of the day a nd
 T l i e R u l es f
o E viden ce . 61

I n what place R eplies to these seven

questions were indispensable and imperative .

F ailure to answer any one rendered the tes

tim o ny null and void Th e r esponses thus
.

elicited were regarded as furnishing valid

and trustworthy evidence ; if unt ru e it could
be fal sied by proving an alibi agai nst the
witness A ny one of these seven questions
.

u nanswered or u nsatisfactorily answered

, ,

would preclude the possibility of adopting

this course in cases where perjury had been
committed .

To procure the condemnation of an a c

c u s e d person two competent witnesses in
, ,

dependent and not related were absolutely ,

necessary . E ach must have satisfactorily

replied to the H a k iro th Agreement of the .

evidence offered by each was O f course a s i ne

g ud n o n To
. provide however for m istakes
, ,

into which a witness m ight unintentionally

fall a special series of rules was framed as
,

to questions 6 and 4 These will presently .

be indicated F rom the nature of the

.
 C r i m i n a l C ode f
o tne y e n/s .

H a k iro th
it follows that to convict a criminal
it was necessary that two competent persons ,

to all appearances unprej udiced and impar

tial should have detected the offender i n
,

g
a r a n te de l i cto .

The second set of questions the Bedi ,

koth consisted of inquiries referring to cir

,

c um s ta n c e s connected with the commission

of the crime They were not like the
.
,

H a k iro th limited to number

, The S y n h e .

dri n m ight ask any nu mber provided they ,

were relevant ; subject however to the , ,

following conditions : N O evidence as to

the prisoner s antecedents was admitted ; no
previo us convictions might be urged against
him ; n o proofs of character good or bad , ,

were allowable E xtenuating circumstances

.

were noted but only by the judges The

, .

Be d ik o th were always strictly con ned to

details connected with the actual perpetra
tion of the crime F or instance in a charge .
,

of murder the judge would ask whether the

witnesses had been acquainted with the per
 T ne R u l es f
o E vide n ce . 63

son assassinated ; if they had cautioned the

p risoner as to the gravity of the offence ; if
they had warned him of the punishment to
which he was l iable upon conviction ; whether
they thought the accused was h imself cogu i
zant O f the serious nature of his crime with
what weapon the deceased had been slain .

I n cases of Paganism the inquiries would be

w hat divin ities the culprit had worshipped ;

what acts constituted the worship ; had he

prostrated himself before the i mages ; had
he offered incense to the strange gods ; had
he immolated sacrices i n their honou r or ,

p oured ou t libations upon the forbidden

alta rs I n no case was a witness permitted
.

to make a statement for or against the

.

accused . The evidence was strictly con

ned to replies elicited i n response to lead
ing questions from the judges H earsay and .

presumptive evidence was rejected as worth

less ; and circumstantial evidence was i nad
missible I n the Be dik o th it was of course
.

requ isite that the statements of th e witnesses

 C r i m i n a l C o de f t e yen

o /s .

should agree in all essential details ; but it

was enough if the main facts coincided I f .
,

for i nstance a witness i n a case O f mu rder

,

testied that the criminal was attired in a

black coat and another asserted he was at
,

the time dressed in a wh ite coat their evi ,

dence was admitted I f however one said

.
, ,

the murder was committed with a spear an d

the other with a knife their evidence was
,

rej ected ; there was a material contradiction

of a material fact S o too in a civil cause
.
, , ,

if one witness swore that a certain su m of

money was contained i n a blue bag and ,

another said it was a red bag the testimony ,

was g ood If however one asserted the

.
, ,

su m to have been a thousand pieces of silver

and the other two thousand pieces the evi ,

dence of both was set aside Probability .

was never considered by H ebrew judges .

T he J ewish lawyers moreover held fast by

, ,

the M osaic injunction that twd or more

credible witnesse s were required in every
case Where a marked discrepancy was
.
 T ne R u l es o f E vi dence . 65

apparent i n the testimony of two persons ,

one account alone could be deemed trust

worthy There was as the rab bins reasoned
. , ,

but one credible witness i n such a case an d ,

th e Mosai c condition was not fullled The .

examination of witnesses was conduc ted in

priva te by judges deputed for that purpose .

A l l testimony not i n accordance with the

laws of evidence was immediately declared
inadmissible ; it could not be deposed to i n
full court H ence i n all cases where dis
.
,

c r e pa n c ie s were discovered during the pre

liminary investigation the statements O f the

,

witnesses were no t submitted to the judges .

There was therefore n o possibility of the

S y nh e dr in being prejudiced or inuenced by
any testimony that failed to satisfy the rules
of evidence .

We have sai d that i n the case of th e

H a k iro th questions as to time and place
it was indispensable that the statements
J u r n i s h e d by two witnesses shou ld coincide
,
.

D iscrepancies in the respective answers gi ven

F
66 C r i m i na l C ode f
o tne Yen/s .

i n reply to any one question would n e ce s

s a r il inval idate the whole of the evidence
y
brought forward But such non . agreement
i n the responses elicited must have been
suf ciently marked to constitute a denite
disaccord an unmista kable contradiction
, .

But of course th e rabbins were aware

, ,

that stupidi ty or un intentional error might

accou nt for triing differen ces O f s ta temen t .

That any such u nimportant variations should

not bring about a m iscarriage of justice cer ,

tain rules were framed applicable to question s

4 and 6 ,
regarding the day of the month and
the hour of the day A mong the H ebrews .

the number of days in a month was not xed .

S om etimes a lu nar month consisted of twenty

n ine occasionally of thirty days When the
,
.

new moon was an nou nced the public were

l ikewise informed how many days the month
would include I f a man happened to be
.

absent when the b odes nnew moon was

proclaimed he might easily go astray i n
,

h is reckoning H e might have forgotte n

.
 .

T ne R u l es f
o E viden ce . 67

whether the preceding month consisted o f

twenty nine or of th irty days ; as a resul t
-

he might be in error to the extent of a day .

A ccordingly the law ena c ted that provided ,

the replies of the witnesses coincided in all

other respects a day s difference in the two
,

answers to question 4 should not invalid ate

the evidence . I f therefore one asserted
, ,

that the crime was committed on the rst

of the month and the other on the second ,

the testimony held good But if the former .

sai d the second of N issan and the latter the

fourth of N issan the eviden ce was altogether
,

void A man urges one of the rabbins

.
, ,

mi g ht perhaps make a mistake two month s

run ning . To th is however the majority
, ,

demur A conscientious person was not to

.

be lightly suspected of having on two suc

c e s s iv e occasions neglected the performance

of what was regarded as a reli g iou s duty .

Again a mistake m ight easily be made when

,

replying to question 6 that is regarding th e

,

F2
68 C r i m i na l C o de f tne 7ezvs
o .

hou r of the day The sun was the town

.

clock in those ti m es an error i n respect of

a n hou r or even two was by n o m eans im
, ,

possible Accordingly the rules of evidence

.
,

permitted of a difference or discrepancy of

two hours in th e respective answers to the
H a k ir o th But this was not perm issible if
.

the two hours specied were bet ween what

to moderns would be eleven in the morning

and one o clock in th e afternoon H ere .

such non agreement was not allowable N o

-
.

E astern was likely to mistake the position

of the sun about noon to the extent O f two
hours .

-
S uch briey summarised are the prin
, ,

c ipa l inju nctions of the Talmud regulating

the ad missibility of evidence and the qual i
c a tio n s of witnesses and specifying the ,

mode of examination They were calculated .

to simpl ify procedure expedite j ustice pre , ,

vent u ndue pressure of judicial authority ,

and more than all render impossible those

, ,

hard cons tructions a nd strained inferences

 Tl ze R ul es f
o E viden ce . 69

of which Bacon so eloquently bids j udges

A sketch of the proceed ings in a capital

trial will illustrate the p ractical applicatio n
of the l a ws we ha ve alre a dy d es cribed

.
 C r i m i na l C o de f tne 7ezvs

o .

C H A P TE R VI .

F O RM O F T R I AL I N CAP ITAL CAS E S .

A C A P I T A L trial was c onducted with all the

solemn ity O f a rel igious ceremony The .

exercise O f judicial fun ctions was at all times

regarded as a sacred privilege ; and the
resp onsibility i ncurred in crim inal cases was

ever present to the H ebrew m ind A .

judge says the Talmud should always con
, ,

sider that a sword threatens hi m from above ,

and destru ction yawns at his feet R ising .

betimes i n the morn ing the members of the

,

S y n h e d r in assembled after prayers i n the

H all of J ustice Pendi ng the a rrival of the
.

culprit a nd the p reparations for the trial they ,

commen ted among one another on the serious

nature of the duties they were called upon to
disch a rge The judges were so a rranged as
.
 F or m f
o T r i a l i n C ap i ta l C a ses .
71

to sit in a semicircle I mmediately i n fron t

.

of them were three rows of disciples E a ch .

row numbered three a nd twenty persons

- -
.

Thus every judge was assisted by three

j un iors
. These d isciples were not young
and inexperienced students but were man y ,

of them i n no wise inferior to the mem be rs of

the court itself A ny vaca ncies in the rst
.

row were lled up from the secon d ; any

re quired in the secon d were suppl ied from
th e third rank ; and the th ird was recru ited

from the numbe r of lea rne d men to be found

i n every place having a permanent S y nh e dr in .

Three scribes were present on e was seated

on the right one on the left the third i n the
, ,

centre of the hall The rst recorded the

.

names of the j udges who voted for the acqu it

tal of the accused and the arguments upon
,

which the acqu ittal was grounded The .

second noted the names of such as decided

!
to condemn the prisoner and the reason s
upon which the Conviction was based Th e .

third kept a n account of bo th the preceding ,

7 2 C r i m ina l C o de f
o M e years .

so as to be able a t any time to supply omis

sions or check inaccuracies in the memoranda
of his brother reporters The culprit was
.

placed in a conspicuous position where he ,

could see everything and be seen by all .

O pposite to hi m and in full view of the cour t

w ere the witnesses Thus constituted an d
.

arranged the S y nh e d rin commenced its in

,

v e s ti a tio n s
g .

The procedure in a c apita l trial differed

i n many importa nt respects from that adhered
to i n ordinary cases I n an ordinary case the
.

discussions of the j udges commenced with

argumen ts for or against the accused ; in a
'

capital charge it could only begin with an

argu ment urged in behalf of the prisoner I n .

an ordinary case a majority of one was s uf

cient to convict ; in a cap ital charge a maj ority
O f one could a cquit but a maj ority of two
,

was necessary to condemn I n ordinary cases .

j udgment pronounced could always be a n

nulled u pon discovery of an error i n cap ital
c ases the decision was irrevocable once th e
 F or m o f T r i a l i n C ap i ta l C a ses .
73

accused had been declared innocent In .

ordinary cases the disciples present coul d

offer O pin ions for or against either pa rty ; i n
a capita l trial they were only permitted to
suggest argu ments i n favou r of the culp ri t .

The judges in ordinary cases could change

thei r O pin ion prior to giving th e nal and
collective decision ; but i n a capital charge
they were only permitted to Change if at rst
they had intended to vote for a conviction .

A n ordinary trial if commenced in the morn

,

ing might be continued during the evening

,

i n a capital issue the proceedings must cease

and the sitting be suspended at sunset A n .

ordinary charge could be heard a nd a djudi

c a te d upon in on e day ; in a cap ital case a
prisoner could be acqu itted the same day as
he was tried but sentence of death could not
,

be pronou nced until the following afternoon .

L astly i n ordinary cases the judges voted

, ,

according to seniority the oldest commencing

,

i n a capital trial the reverse order was fol

lowed Th a t the younger membe rs of the
.
74 C r i m i na l C ode f
o tne y
e n/s .

S y nh e d r inshould not be inuenced by the

views or argumen ts of their more mature '

m ore experienced colleagues the j unior judge ,

was i n these cases always the rst to pro !

nounce for or against a conviction .

A s soon as the S y nh e d r in was ready th e

examination O f the witnesses commenced .

The rst who was to give evidence was taken

i nto an adj oining chamber a nd carefully a d
monished H e was asked if he had not per
.

chance founded his conviction of the prisoner s
gu il t upon prob ability on circu m stantial proof
, ,

or by hearsay whether he was not inuenced

in his opin ions by persons whom he regarded
as trustworthy and reputable D id he know .

he would be submitted to a searching and

rigorous e x amination and was he acquainted
with the penalty enta iled by perjury ! The
m ost venerable of the judges then addressed
the witness solemnly adjuring h im to truth
,

Do y o u know said the rabbin

fulness .
, ,

the difference between a civil and a criminal

c a se I n the for m er case a n error is a lw a ys
 F or m f
o T r ia l i n C a ita l C a ses .
75

reparable ; restitution can always be made .

B ut in the lat ter an u nj ust sentence can never

be atoned for ; and you are responsible for
the blood of the condemned an d all his pos
sible descendants .F or this reason God
created Adam whose posterity lls the
earth alone and sole in order that we m ight
,

u nderstand that he who saves a single soul is

as though he saved an entire world ; an d he
who compasses the destruction of a single
life is as though he had destroyed a world .

That the Almighty formed but one man i n

the begin ning is moreover intended to teach
us that all men are brethren and to prevent
,

a ny individual from regarding h imself as

superior to a person belonging to another

nation N evertheless continued the judge
.
, ,

if you witnessed the cri me and conceal the

facts you are culpable H ave no fear there
.

fore of the responsibility you i ncur ; and

remember that as a city rej oiceth when th e
righteous succeed so doth a town shout when
,

!
they that wrought wickedness are punishe d
76 C r i m i n a l C o de f
o M e

U pon the conclusion of this e x hortation the

examination commenced The H a k iro th . ,

questions as to time and place were put to ,

each of the witnesses and subsequently the ,

B e d ik o th inquiries relative to th e comm ission

,

of t h e crime A s soon as the answers con

.

s titutin
g the evi d ence against the prisoner
had been received they were submitted to
the S y n h e d rin The consideration of th e
.

case was thereupon proceeded with As we .

b efore pointed ou t the rebutting testi mony

,

could only be directed against the H a k iro th

by proving an al ibi against one or both of
the witnesses I f the accused succeeded i n
.

so doing he was of course at once acqu itted .

I f there was a marked discrepancy in the

Be d ik o th s u f c ie nt i n fact to render the
, ,

sta tements of the witnesses contradictory

the trial equally of course im mediately term i
na te d . There would be under the circu m ,

stances named no evidence legally admissible

,

n o valid testimony to lay before the S y nh e d r in .

S upposing however th e fac ts elici ted fro m

, ,
 F or m f
o T r ia l i n C ap ita l C a s es .
77

the witnesses were such as could be brought

i nto cou rt in support of th e charge then the ,

tribunal commenced the discu ssion pre l im i

nary to voting .

The deliberations could only begin with an

argument in favou r of the accused N othing .

was therefore urged u ntil one of the judges

found some fact or facts telling against the pro
s e c u tio n
. The member of the S y nh e d r in then
rose and alluding to the circumstances said
, ,

A ccording to such and such a s ta tement it ,

appears to me the prisoner must be acquitted .

The discussion thereupon became gene ral .

E very item of evidence was carefully over

hauled e ach of the answers given by the
witnesses was subjected to m inute criticism .

Apparent inconsistencies were dilated upon ,

and extenuating facts pleaded The culprit .

himself was permitted to u rge anything i n h is

own favour or against the evidence of the pro
s e c u tio n
. I f a disciple fou nd a cogen t or valid
argument on behalf of th e p risoner he was ,

placed among th e judges and regarded as a

,
78 C r i m i na l C o de f
o t e yews .

member of th e court during the entire day .

I f on the other hand one of the disciples

, ,

n oticed anything calculated to inj ure the

defence he was not permitted to call a tten
,

tion thereto A s soon as the discussion ter

.

m ina te d the preparations for recording the

votes C ommenced The scribes were ready
.
,

and each j udge begi nni ng with the youngest

, ,

pronounced h is decision for or against the

accused A t the same time each stated the
.

facts upon which his conclusion w a s grounded .

T he observations of the members were care

fully recorded and preserved A s soon as .

the whole of the S y n h e d r in had voted the ,

numbers were announced I f eleven con .

v ic te d and twelve acqu itted the prisoner was ,

without delay d ischarged a majority of on e,

v oice being su fcient for this pu rpose If .

twelve convicted and eleven acqu itted th e , -

accused could n o t be condemned a maj ority ,

of at least two being required I n such a .

case the following expedient was adopted

two additional j udges were added these being ,

 F or m o
f T r ia l i n C ap i ta l C a s es .
79

selected from the rst row of disciples V oting .

then recommenced I f a maj ority of two .

against th e prisoner was thus obtained he

was convicted I f n o t the process of in
.
,

creasing by twos the nu mber of the S y nh e d rin

continued u ntil the requ isite preponderance
was gained .S hould the tribunal by this
means come to consist of seventy one mem -

bers of whom thi rty six voted for a c o nv ictio n

,
-

and thi rty v e agai nst the matter was r e

-
,

argued until one of the former gave way and

declared in favour of an acqu ittal S hould .

the six and thirty adhere to their opin ion s

- -

the prisoner was d ischarged I f at the original .

voting thirteen members of the S y nh e dr in

decided to convict or if after the subsequent
,

additions a majority of two was O btained i n

favour of the same course the a ccused was ,

found gu ilty S entence however could not

.
, ,

be pronounced until the following afternoon .

The sitting was therefore suspended u ntil

next morn ing .

I n such c a ses that is when sentence of

, ,
80 C r i mi na l C ode f
o tne yea /s .

death appeared i nevi table the , S y nh e d r in ad

jo u rne d
im m ediately the maj ority tha t deter
m ined a conviction was announced S lowly .

the members qu itted the hall wherein the trial

had been conducted Gathering in knots of
.

three and m ore they remained for some little

,

time i n the street d iscussing among them

selves the m isfortune i mpending over their
city for as s uch all H ebrews regarded the
execution of a fellow man Gradually the .

groups broke up ; the j udges proceeded to

their homes They ate but a small quanti ty
.

of food and were not perm itted to d r ink

,

wine during the remainder of the day or

evening After sunset they made calls upon
.

each other agai n debating the various argu

,

m ents adduced during the trial At n ight .

each retired to h is chamber and gave hi m

self up to meditation or so it was believed .

The knowledge that a l ife a life declared

b y their traditions to be equal to a world
depended upon their verdict would lead the m
to ponder upon the judgmen t of the m orrow .
 F or m f
o T r i a l i n C ap i ta l C a s es . 8I

There was yet time to reconsider the sentence ,

ti me to recall a decision that a few hou rs

would render eternally irrevocable R ising .

early in the morning they returned to the

,

house of justice N ot on e was perm itted to

.

partake of food The day that condemned an

.

I sraelite to death was a fast day for his judges

-
.

M eeting in the hall of assembly the members

O f the S y nh e d r in with their disciples were

arranged as on the preceding morni ng The .

witnesses were agai n present ; the criminal

was brought i n The scribes seated them
.

selves and the proceedings commen ced O n e

, .

by one each j udge in succession pronounced

h is decision ; agai n each repeated the argu
ments upon which it was based The scribes .
,

tablet i n hand compared the statements n o w

,

made with those recorded on the previous

day I f any member of the tribunal voting
.
,

for a conviction founded his j udg m ent upon

,

reasoning materially opposed to that he b e

fore u rged his verdict was not accepted
, .

O ne who had resolved to acqui t on the pre

G
 C r i m i na l C ode f
o ti n yen/s .

ceding day was not permitted to change hi s

determination But any one who had decided
.

to convict m ight upon furnishing the S y nh e

,

d r in with the arguments i nducing h im so to

do vote on th is occasion i n favo ur of an a o
,

quittal Again the nu m b er for and against

.

the accus e d was announ ced S til l the sen .

tence was deferred The prisoner m ight

.

b e think h i m s elf of some val id plea in e x te nu

ati o n of his crime ; u nexpected witnesses
mi g ht be forthcoming the S y nh e d rin might
pro duce s o me favourable arg uments S lowly .

the sun gai ned the meridian S till the court .

sat ; n on e thought of quitting the hall of

j udgment Gradually the sun declined and
.

even ing drew nigh There was to be no in

.

te r v a l between sentence and execution ; the

hour that heard the doom pronounced woul d

see i t carried into effect S unset was the tim e
.

xed for both A s the afternoon wore o n

.

th e d o o r s of the cou rt were opened A man .

stationed himself at th e gate carrying i n h i s ,

hand a ag . In the dis ta nce w as a h orse

 F or m f
o T r i a l i n C ap ita l C a s es . 83

man , so placed as to perceive readily the

l east m ovemen t or agi ta tion of the bu nting .

With a solemnity becoming the occasion the ,

S y nh e d rin a fter praying th a t they m ight

,

co m m it no sin thereby decreed the pun i sh ,

ment of death A ccompanied by two rab

.

bins the convict was led to the place of exe

,

c utio n without the walls H ope was n o t even

.

yet ab a n doned I f one of the judges b e

.

t hough t him of an a rgument in favour of the

criminal the ag at the door was raised and

the m ounted messenger prepared for such
a n emergency galloped forward to stop the
execution I f the culp rit requested to be
.

reconducted to th e court he was taken b ack ,

as often as he furn ished any valid excuse .

The S y nh e d rin sat u ntil the ha zan mes

senger of the cour t returned with a noti
c a tio n that the condemned m an was n o
more Again uttering a prayer that the
.

j udgment that day pronounced might not have

been in error the members rose and silently
,

qu it ted the hall of j ustice .

0 2
84 C r i m i na l C o de of t e 7ezvs .

C HA PTE R V II .

THE VAR I O US METH O D S OF E! E CU TI O N .

T HE rab b ins were the rst among ancient

legists to render the iniction of the death
p enalty as painless as possible The manner .

in which the sentence of the law i n capita l

cases was carried into effect was regulated by
a series of enactments E very det a il was
.

preordained . The place of execution was

always beyond the limits of the town gener
ally at some distance from the hall where
j udgment had been pronounced There were .

two reasons for th is rs t that a certain in
,

te rv a l of time should elapse between sentence

and execution so as to permit the cou rt to

examine any evidence that m ight yet be forth
coming ; and secondly that the S y nh e drin
, ,

should not witness the execution A s s o on .

 '

T li e Va r io us M et od s o f E i
x ecu t o n . 85

as the punishment of death was decreed the ,

criminal was conducted from the court Two .

elders the witnesses and the ofcers of the

, ,

tribunal accompanied Him I n advance of .

the cort ege walked an attendant proclaiming ,

aloud S O and s o is to be executed for such

,
- -

a nd such an offence ; s o and s o are the wit

- - -

nesses the crime was committed at such a

place on such a day at such an hour I f any
, , .

person can urge anyth ing against the in ic

tion of the punishment let hi m go to the ,

S y nh e d r in now sitting and state his argu

m ents Thus the party proceeded through
.

the town A rrived with i n six yards of the

.

place of execution the sages who were with

the condem ned man pressed him to confess his
crime They told hi m that whosoever makes
.

confession is privileged to share in the o l a m

lza oa
fu tu re existence ; since death was an

expiation for all iniqu ities I f he refused to .

acknowledge h is guilt he was asked to say ,

M ay my death prove an atonement for all

my transgressions H e was then conducted
.

 C r i m i n a l C od e o f tb e y en/s .

to within four y a rds of the place where the

senten ce was to be carried into effect T he .

d e ath draught w as here adm inistered T his

-
.

beverage w a s composed of myrrh and frank

incense (l ea n a ) i n a cup of vinegar or l ight
,

wine I t produced in the convict a kind of

.

stupefaction a semi conscious condition o f

,
-

mind and body rendering h im i ndifferent to

,

his fate and scarcely sensible to pain The .

drink wa s in J erusalem provided by the

wo m en who considered this one of the great
,

est m i tzvo tn meritorious deeds I n pro .

v in c ia l towns the local communal authorities

were required to furnish the criminal with

th e draught the ingredients were purchased
at the public expense A s soon as the cul.

prit had partaken of the stupefying draught

the execution took place .

I n accordance with the M osaic code fou r

kinds of death were inicted each appro ,

r ia te to a disti nct se r ies of crimes These

p .

were stoning stra ngling burning a nd decapi

, , ,

ta tio n . N othing can be more absurd than

 T ne Va r i ous M n
et ods of E x ecu ti o n . 87

the notions generally current respecting the

manner i n which these punishments were
carried out among the J ews The ston ing of
.

the Bible and of the Talmud was not as ,

vulgarly supposed a pell mell casting of

,
-

stones a t a crim inal the burning had noth ing

whatever in common with the process of con
s u m in by re a l iving person as practised
g
by the churchmen of the M i ddle Ages nor
did the strangl ing bear any resemblance to
ou r E nglish mode of putting crim inals to
death .

The S ton ing to death of the Talmud was

performed as follows : The criminal was
conducted to an elevated place divested of ,

his attire if a man and then hurled to the

,

ground below The height of the eminence

from which he was thrown was always more
than fteen feet ; the higher within certai n,

limits the better The violence of the con

, .

c us s io n caused death by dislocating the spinal

cord The elevation was not ho wever to be

.
, ,

so h igh a s to smash or greatly d is g ure th e

 C r i m i na l C o d e f
o tne yen/ s .

body This was a tender point with the

.

J ews ; man was created i n God s image and ,

i t was not permitted to desecrate the temple

shaped by H eaven s o w n hand The rst of .

the witnesses who had testied against the

condemned man acted as executioner in a c ,

c o r d a n c e with Deut xvi i 7

. I f th e convict
. .

fell face downward h e was turned on his

back I f h e was not quite dead a stone so
.
, ,

heavy as to requ ire two persons to carry it ,

was taken to the top of th e eminence whence

he had been thrown the second of the wit
n esses then hurled the stone so as to fall
u pon the culprit below This process how
.
,

ever was seldom necessary the sem i stupe

,
-

e d condition of the convict and the heigh t

from which he was cast ensuring i n the
generality of cases instant death .

The bodies of those condemned for blas

p h em
y or idolatry were subsequently hung
u pon a gallows until dusk I mmediately .

'

after execution the corpse was interred O u t .

a

side every town there were two ce m e teries

 T e Va r io us M et on ds f
o E x ecutio n . 89

for criminals one for th ose sentenced to be

s toned or burned o ne fo r those d ecapitated

or hanged A s soon as the esh had d is a p

.

a re d the skeleton coul d be removed to the

p e

family burying place A few days after an

-
.

execution the friends and relatives of the

dead man h e was no longer regarded as an
O ffender called upon the judges who had

tried h im Th is was a taci t acknowledgment

.

that the pun ishment had been j ustly awarded ,

and that those charged with the adm inistra

tion of the law were regarded with n o r e
vengeful feelings by the family and c o nne c
tions of the u nfortunate man .

Death by stoning was the penalty of the

following crimes adultery of an unnatural
Character blasphemy and any form of idola
try ; public profanation of the S abbath cu rs
ing parents ( which must include blasphemy)
the practice of O and y don ipresumably a
form of idolatrous sorcery ; criminal assault
upon a N a a ra h ( a young girl not yet of full

ageOne of mature years is term e d in the

90 C r i m i n a l C ode f
o tne 7
a m
.

Talmud dag r otn) ; any perso n seducing another

to idola try ; and a stubborn and rebelliou s
son . S ome other o ffences specied in the
Pen ta teuch we re also punished by ston ing .

A crim inal sentenced to death by burning

was executed i n the following man ner A .

shallo w pit some two feet deep was dug in

the ground I n this the culprit was placed
.

s tanding upright A round his legs earth wa s

.

shovelled and battered rmly down until h e

was xed up to his knees in the soil M ovemen t .

on the pa rt of the condemned person was of

course impossible ; but care was ta ken that the
l imbs should not be pain fully constrained A .

stro ng cord was now brought and a very soft ,

cloth wrappe d round it This was pas sed once

.

round the o ffender s neck Two men then .

came forward ; each grasped an end of the

rope an d pulled hard S uffocation was im
.

mediate As the condemned man felt the

.

s train of the cord and insen sibility super

,

vened the lower jaw dropped

,
I nto the .

m outh thus O pened a lighted wick w as qu ickly

 T b e Va r i o us M n
et o ds o f E i
x ecu t o n .
91

thrown This constituted the burning After

. .

death ensued the body was buried in the

ce m etery for criminals This manner o f
.

death was prescribed by an i njunction of the

Pentateuch for those committing adultery in
certain specied cases notably where the
married daughter of a priest was fou nd guilty
of the crime .

Decapi tation was performed by the J ews

after the fashion of the surrounding nations .

I t was considered the most hum iliating the ,

m ost ignominious a nd degrading death that

a ny man could suffer I t wa s the penalty i n
.

cases of assassination and deliberate murder .

I t wa s i ncu rred by those who wilfully and

wantonly slew a fellow man with a stone or
-

with an implement of stone or iron I t was .

l ikewise the punish men t meted out to all

persons who resided i n a town the inhabitants
of which had allowed themselves to be se
d uce d to idolatry and paganism .

S tra ngulation was a form of death by

s uffocation I t was effec ted as i n burning
. .
92 C r i m i na l C ode f
o t e 7e zvs .

The culprit stood up to his knees i n loose

earth A soft cloth containing a cord was
.

wound once roun d his neck The ends being .

tightly pulled i n opposite directions l ife was ,

soon extinct This mode of death was the

.

punishment of one who struck his father or

his mother ; of any one stealing a fellow
I sraelite ; of a false proph et ; of any one
committing adultery ( as we u ndersta nd this
crime nowadays ) and of th e elder or pro
v in c ia l ju d ge who taught or acted contrary to

the decision of th e Great S y nh e d r in of J er u

salem .

I t h a s before been said that in certain

cases the bodies of malefactors were hung

after execution The reverence for the dead
.

characteristic of the R abbins is nowhere ,

more markedly apparent than in the manner

in which this M osaic ordinance was carried
out A beam was embedded endwise i n the
.

ground F rom it a branch of wood proj ected

.

like an arm This extended above the place

.

where the corpse was lying The two hands .

 T no Va r io us M n
et ods o f E x ecuti o n .
93

of the deceased were tied together and the ,

culprit thus suspe nded A ccording to an ex

.

p ress inj unction of th e Pentateu ch the body ,

of a criminal was n ot permitted to hang du r

ing the night it had to be removed at su n
set. N ow sentence was invariably pro
n o u nc e d towards evening and execution im
,

mediately followed I n any ca se therefore

.
, ,

the corpse could not have been suspended for

many m inutes The Talmud however further
.

enacted that whenever the body of a criminal

was to be subjected to the indign ity of expo
su re i n this fashion two men were to undertake
the duty O n e was to suspend the deceased
.

on the extemporised gallows the other to ,

take down the corpse and while the former

was engaged in tying the last cord by which
the malefactor was to depend from the pro
j e c tin
g limb the
, latter was to commence to
unbind the rst The body was thus but a
m oment exposed to the indignity and y e t ,

compliance was made with the let ter of th e

la w U nder no circu m stances was th e corpse
.
94 C r i mi na l C ode f
o tne 7 ezvs .

of a criminal suffered to rem a in unburied

u ntil the day after death .

The a ri a m itnotn et/i di n the four -

de a ths decreed by the cou rts of justiceas

herein described are the only modes of
,

e x ecution i n accordance with H ebrew law .

C ru cixion as practised by th e R omans and

,

C arthaginians is unkn own to the S cripture

,

equally unknown to the penal enactmen ts of

the Talmud H orrible and unnatural pun ish
.

m ents such as those prescribed by the

,

E gyptian laws in cases of parricide and se !

duction with violence were unknown to the

,

J ews B oiling crim inals alive in oil as pra c

. ,

tis e d by more than one ancient nation bury

ing al ive n ot by any means unknown to th e
,

R omans nay the d isembowelling a nd quar

,

tering of our last century executions woul d

-

have horried a J ewish S y nh e drin who ,

would have regarded such outrages upon the

dignity of man s body as in their own expres
,

sive phrase a lzil l u l na s nem a public d e s e c ra

, ,

cration of the Godhe a d We a re enjoined
.
 T ne Va r io us M h ds
et o
f
o E x ecu ti o n .
95

to love our neighbour as ou rselves says N a h ,

ma n in the name of R abbah the son of ,

A b o uh o u
,

and therefore it is our bounden
duty always to endeavour to m itigate by
every means possible th e sufferings of a fel
low cr eat ure conde m n ed to de ath
- .

 C r i m i n a l C ode f
o tne 7ezvs .

C H A PTE R VI I I .

WH AT C O N STIT U TED M URDE R A D ULTE RY A N D IT S

PU N I S HME N T ID O LA T RY .

T HE whole of the crimes already enumerated

as entailing the penalty of death are pra c ti
cally but varieties of three offences only
murder adultery idolatry T o these must
, , .

be added the case of an elder who taught

contrary to the judgment of the Great S yn
b edrin of J erusalem M urder the rst o f
.
,

these and the most serious everywhere is ,

c arefully discriminated in the Talmud U nder .

certa in conditions only was it punished with

death To explain this fully we must ask
.

the question What constitutes murder a c

,

cording to the H ebrew penal code P

To constitute murder it was n ecessary to
prove mal ice and intent In the words of .

the B i ble the criminal m ust have hated his

 M u r der , A d u l tery , a nd I d o l a try .
97

neighbour from heretofore and as regards

the commission of the offence he must have ,

lain in wait for h is victim in order to slay
h im. The malice a n d in te n t were to be :

actual and demonstrable N either of these .

essential conditions was to be presu med or

inferred from the mere circumstance O f a n
O ffence having been perpetrated The E n .

glish legal gment of constructive malice ,

like constructive murder was undreamed of ,

by the H ebrew legists To convict capitally

.
,

as ou r criminal code can a man who shoots ,

at a fowl perched on a hedge and acci ,

dentally kills some person hidden behind i t ,

would have seemed to the rabbins an act of

the grossest inhumanity O nly when the .

crime was assassination deliberate and pre

,

meditated was sentence of death pronounced

, .

Before proceeding further it is necessary

to refer here to the remarkable enactment of
the Talmud known as the preliminary cau
,

tion. A s already pointed out this ordinance ,

of the M ishnic doctors required that in order ,

H

98 C r i mi na l C o de f
o tk o 7ezvs
_
.

to secure a conviction i n certai n cases proof ,

had to be forthcoming that the witnesses had

warned the accused prior to the commission
of the offence with which he was charged ,

and inform ed him of the gravi ty of the crime

he contemplated and the penalty atta ched to
its perpetration M R a bb ino w ic z as we b e
. .
,

fore observed regards this inju nction o f the

,

rabbins as designed to abolish altogether the

penalty of death H e thinks that i n a case
.

of assassination failure of evidence to prove

that the cu lprit had received this prel iminary

warn ing would constitute one of th e ex
te n u a ting circumstances which evi tate cap i tal

p unishment We
. venture to thi nk that M .

R a bb ino w ic z m isapprehends the real pur

pose and intent of this curiou s proviso .

I n the rst place an important oer a tna

,

declares in the words of J oss e th e son of ,

J udah that the only O bject of th is enactment

,

was to prevent the condemnation of a person

ignorant of the gravity of the offence he had
commi tted H e adds th a t i n th e case of a
.
 M ur der , A du l tery ,
a nd Ido l a try .
99

properly instructed man p roof of the pre ,

l iminary caution was not necessary i n order

to procure a conviction A gain the Talmud .
,

e m phatically declares t hat an a cqu ittal con

tr a r y to an explicit inj unction of the Penta

teuch or written law had to be annulled

, , .

N ow the M osaic code constantly assumes

,

that every man is cognisant of the penal pro

visions of the B ible The Talmud always
.

acts upon this assumption ; n otably in the

enac tments respecting the contumacious
elder E very J ew is suppos e d to know
.

what constitutes murder and what is the ,

penalty incurred thereby The Pentateuch .

says nothing of any preliminary caution

whatever I n a case of premeditated and
.

wilful assassination proved by witnesses i n

,

accordance with the rules of evidence an ,

acquittal grounded upon this provision of the

rabbins only would be manifestly opposed to
,

the letter and spirit of the written law S uch .

a judgment would therefore as the oer a i tna ,

expressly states be illegal and void Th e

, .

H 2
 C r i m i na l C ode f t/ze Ye ti/s

1 00 o .

rea l object and intention of the prelimin a ry

warning will be presently indicated .

O rdinary cases of murder ( i e not a s s a s s i . .

n ation u nder the circumsta nces above men

tio n e d ) were punished with imprisonment for

life or perpetual seclusion H ere the a b sence

.

of long harboured malice nourished enmity

-
, ,

and premeditated desig n constituted valid

argu ments against a capital conviction As .

s a s s ina tio n Clearly proved but not witnessed

, ,

by persons qualied to give valid evidence ,

was also punishable i n the same way I n .

every charge of murder ( common homicide )

it was i ndispen sable to prove that the con
duct or action of the culprit was the direct
cause of death The intent of the deed the
.
,

design of the prisoner at the moment of com

mitting the crime to ta ke away life must be ,

incontrovertibly demonstrable and clearly

established . A s a contributory or as on e ,

among many others who slew a man h e ,

could never be convicted of murder F or .

i nstance a man and his neigh b our quarrelled

,
 M ur der , A d u l tery , a n d I do l a try . 101

and fought The former threw his opponent

.

into a ditch There was a ladder i n it at the

.

time by wh ich any one could have got out

, .

The man above walked away Another passed .

by and seeing a ladder leading into the

, ,

d itch removed it The person below could

, .

not escape and perished i n consequence

, .

U nder such circumstances a charge of mur ,

der could not be maintain ed against the man

who had thrown the deceased person into
the fosse where he d ied This leading case .

embodies the principle throughou t adhered

to by H ebrew legis ts C onstructive murder .

was unknown to the J ewish j udges This .

palpable absurdity still d is g ure s the pages

of our E nglish code F ive men are engaged .
,

say in the u nlawful enterprise of robbing an

,

orchard The owner or one of his watchmen

.

enters A squabble ensues

. O ne of the .

thieves throws a stone which accidentally in ,

j ures the owner or the watchman who dies ,

i n consequence of the hurt received The .

man who cast the m issile and unintentionally

I02 C r i m i na l C ode f
o t/ce Yea/s .

caused the m ischief is perhaps known Y e t .

,

desp ite this fact the whole v e could be found

,

gu il ty of murder an d hanged ! S u ch a con

,

v ic tio n was impossible accord ing to the Tal

mudi e laws I f three ve or any number of

.
, ,

men attacked a single person and slew him ,

only the assailant whose hand actually in

ic te d death could be found gu ilty O f murder .

Where on the other hand th e man who

, ,

actually killed the victim could not be distin

g u i s h e d among the others a l l of them were
,

imprisoned for a xed period and could be ,

compelled to support the family of the de

ceased person The perpetual incarceration
.

of a mu rderer had noth ing i n common with

_

the modern systems of penal servitude M . .

R a b b in o w ic z with much discrimination con

, ,

tra s ts the seclusion of a convict as ordained

by th e H ebrew code for the protection of

society and such systems of life long in ca r -

ceration as prevail in our own time Th e .

mere d eprivation of liberty was considered

by the R abbins the severest punish m ent a
 M u r de r , A d u l te ry , a nd I do l a try . 103

human being could u ndergo The penalty of .

mu rder is in the characteristic phrase of the

,

Talmud that the murderer be put i n prison

,

and they give him the bread and water of

m isery .

A dultery was as sta ted pun ishable with

, ,

de a th To secure a conviction it was i mpe

.
,

r a tiv e that evidence be adduced conclusively

showing that two witnesses had cautioned

the accused of th e gravity of the crime he
or she was about to commit I n connection .

with this offence the primary and real inte n

tion of the prel imi nary warning insisted upon
by the Talmud will be clearly understood .

I n other crimes men alone as a rule were , ,

the culprits I n adultery women would n e

.

c e s s a r il come prominently before the S yn

y
b edrin as the accused N ow a vast amoun t
.
,

of nonsense has been written regarding the

position of females among the H ebrews .

Argumen t ample and instance abounding

have been produced to demonstrate the
light estee m in wh ich wo m en were held b y
1 04 C r i m i na l C ode o
f tae Yea /s .

the J ews A d eal of m isdirected ingenuity

.

has been applied to refuting these assertions .

L ike the !ex ta l io n is the subject has never

,

been properly explained The Talmud is no .

orderly digest or methodised summary of

laws such as moderns are accustomed to I t .

is a veritable garden of wild growths a lux

u r ia n t wilderness A rgument and dicta and
.

enactment and proverb and legend are mixed

and commingled i n a harmoniou s confusion .

I t requ ires some amount of dexterity to pick

one s way Throughout this medley women
.

are regarded from two points of viewthe

legal and th e social The references to
.

women require therefore to be sorted and

, ,

strung together i n two separate series A s .

to th e social position of women a few quo ta ,

tions will sufce to show the high regard in

which they were held The verse in the
.

B ook of J ob ( v which says thou shalt

.

see prosperity i n thy tents refers explains ,

the Talmud to him who loving his wife as

, ,

h imself has more regard for her honour than

,
 M u r der , A du l tery ,
a nd I do l a try . 1 05

for his own The R abb i J ohanan says he ,

who has the m isfortune to lose his wife is as ,

though he had witnessed the destruction of

the Temple F or s a cred writ does not dis
.

dain to gure i n the death O f E zekiel s wife

the overthrow of the holy edice The .

learned S amuel the son of N ahaman ( who

,

lost his rst spouse when very young) de ,

clares that all things may be replaced ; but

never the wife of one s youth R abbi E lea zer .

adds : T he altar itself weeps when a m a n

divorces his wife These sayings will sufce
to indicate that socially women were regarded
with the highest respect and esteem Bu t .

legally their status was unden iably inferior to

that of men A woman was not i n certain
.

lawsuits permitted to give evidence S he .

was regarded as one uninstructed ; one un

versed i n the law But mark how this
.

worked . When a woman appe a red before

the S y n h e d r in charged with adul tery she
, ,

was presumably ignorant of the gravi ty of

the offenc e she had commit ted a nd unaw a re ,
1 06 C r i m i na l C ode f
o tne Yea ts .

of the penal ty e ntailed thereby unless evi ,

dence to tne co n tr a ry was forthcoming To .

condemn an u ntaught person was opposed to

the principles of Talmudic laws I n order .
,

therefore to convict an adulteress it was ia

,

dispensable owing to her legal position that

, ,

competent witnesses should have warned her

prior to the commission of the crime of its
seriou s character and its punishment S uch
testimony was not likely to be produced i n
these cases I ts absence declared the a c
.

c u s e d not responsible for the offence The .

enactmen t of the preliminary caution was
therefore an argu ment in favour of the a c
quittal of a woman charged with any crime ,

notably with adultery This may all seem

.

very strange perhaps not quite credible ;

but i t is true nevertheless
, .

I dolat r y was considered the most heinou s

offence of which a J ew could be gu ilty .

A mong a people professing a monotheistic

faith hedged in by nations given to every form
,

of paganism prone to abomin a tions of every

,
 M u r der , A du l tery ,
a nd I dol a try . 1 07

kind it was thought necessary that any public

,

desecration of rel igion should be severely

punished E very J ew was perfectly well
.

acquainted with the grand principle of his

creed the a ni dus k us nem the u n ity of the
,

godhea d and the spirituality of the C reator

, .

E very H ebrew knew that idolatry in each

and every form was an utter abom ination i n
the sight of heaven H ence in such cases.

ignorance could not be pleaded i n extenua

tion of the crime ; nor was any prel im inary

warning requ isite i n order that j udgment of

death m ight be legally pronou nced I n ord i .

nary affairs as in the m ore serious matters

,

capita lly pun ishable the H ebrew code did

,

not permit of any sort of detective system .

A man was not per m itted to secrete himself

.

i n order to watch his neighbour A witness .

who had acted i n such a man ner would not

have been perm itted to give evidence .

When however a J ew was believed to have

, ,

publicly devoted himself to idolatry and to ,

h ave ende avoured to seduce his nei g hbours

1 08 C r i m i na l C ode of t/ce Ye ars .

to the same practices any ruse was per m itted

,

fo r the purpose of demonstrating h is gu ilt .

I f for example he declared to one perso n

, ,

only that in such and such a grove an i mage

was erected and attempted to persuade him
,

to join in worship there the latter was per ,

m itte d to hide a friend wherever convenient ,

and calling th e idolater might say to h im , ,

N ow tell me more about that image you

worsh ip .

I f the backslider repeated hi s sol i

ci ta tions the testimony of the two witn esses
was procured which was necessary for con
,

d e m n a tio n B ut previou s to laying the mat

.

ter before a S y nh e drin it was imperative upon

bo th these witnesses to reason with the idol
ater They were according to the Talmud
.
, ,

to spe a k kindly with him They should a d .

dress him and say : H ow would you have

us forsake our God who is in he a ven to follo w

deities who are made of wood and stone !
I f the erring brother gave ear to their e x h o r
ta tio n a nd
qu itted his pagan pra ctices the ,

witnesses who knew of his backsliding were

 M u r der , A du l tery , a nd I do l a try . 1 09

not permi tted to m ention the fac t to a ny

neighbours or friends H e who repents
.

must never be reminded of his for m er ini

q u i ti
.e s B ut if obstina tely bent on worship
ping the imag e he had found and set up for

h imself the depositions as to the circum

,

st a nces were laid before the trib unal These .

facts were however only su fcient to found

, ,

an accusation upon To convict it was ne c e s

.

sary to prove that the offender w a s really given

to the pagan practices to wh ich he endea
v o u re d to persuade his brethren S imilarly ,

in the case of a simple idolater it was requ isite

to prove more than mere adoration of an
image or prostratio n before it or dressing ,

and tending it I t must be shown that he

.

acknowledged it verbally as his divin ity and ,

immolated sacrices or offered incense in its

honou r This was essential in order to con
.

s titu te idolatry punishable with death .

T he re m aining capital offence d is o b e di
ence to the judgment of the great S y nh e d rin
of J erus ale m - has been already referred to .
1 10 C r i mina l C ode f
o tne yea /s .

T he penal ty was necessary in this case not ,

solely on account of the mischief resulting

from an elder or j udge having inuence and
,

authority acting and i nducing others to act

,

contrary to tradition b ut for another reason

, .

I t must be borne in mind that the S y nh e d rin

at J erusalem was the parliament of the nation ,

and disregard of its authori ty was in poin t ,

of fact a pol itical crime equivalent to high

,

treason A n execution for such an offence

.

could only take place in J erusalem ; and

only during the celebration of one of the
S halosh R e g a l im three great festivals of
the year when every male came up to the
capital By this arrangement the inj unction
.

of the Pentateuch was fullled ( Deu t x vii . .

and All I srael heard .

Two other punishments are prescribed by

the H ebrew code internment in a city of r e
fuge and o g g ing the former for accident
,

ally killing a neighbou r the latter for a large

number Of serious offences These we shall .

now pro ceed to discuss .

 H o m icide ( a cc identa l ) , a nd P erj u ry . 1 1 1

C H A PT E R I! .

C ITI E S OF R E FU GETH E PU N I S HME N T FO R P E RJ U RY

FLO GGI N G .

H O M I C I D E by m isadventure tha t is the a c -

,

c id e n ta l killing of a fellow man entailed -

upon the offender the penal ty of internment in

a city of refuge The slaying of a neighbou r
.

by mischance was not however regarded as , ,

a crime properly s o called ; nor does the Tal

-

mud consider the penalty thereby incurred in

th e light of a pun ish ment The Pen tateuch .
,

i n common with all ancient legal systems ,

recogn ised the right of private vengeance in

cases of murder and manslaughter The .

family relatives
, and connections of the
,

deceased could slay the culprit wherever dis ,

covered . But most nations arranged th e

matter satisfactorily by a pecuniary payment .

The A thenians for e x a mple pl a ced the nego

, ,
 1 I2 C r i m i na l C ode f
o tde years .

tia tio n s for this purpose in the hands of the

E ph e te s .Th is was a progressive step The .

M osaic code went further I t abolished the .

blood money altogether ; but th is left the

-

offender at the mercy of those who were e n

titled to avenge the death R ecollecting .

probably his own misadventure with the

E gyptian who m he accidentally slew and h is ,

compulsory ight in consequence M oses pro ,

v id e d in his legislative scheme for the estab

l is h m e nt of cities of refuge To these the .

H ebrew who by mischance killed his neigh

bou r was permitted to proceed H ere he .

was in safety secure from the vengeance of

the O d e! na da m the redeemer of the blood
, .

T he arrangement was therefore rather i n the

, ,

nature of a privilege than a punishment .

I nternment in one of the cities of refuge

was not the scampering process dep icted in the
popular engraving a man in the last stage of
exhaustion at the gate of an E astern town ;
his purS Ii e rs close upon him arrows xed and ,

bows drawn ; h is arms stretched imploringly

 H o m icide ( a cc i d en ta l) , a nd P erj u ry . 1 I3

towards a fair J ewish damsel with pitcher

gracefully poised upon her head This may .

be extremely picturesque but it is miserably

,

u nlike the custom i n v ogue among the later

H ebrews I nternment in a city O f refuge was
.

a sober j udicial proceeding H e who claimed .

the privilege was tried before the S y n h e d r in

l ike any ordinary criminal H e was required.

to u ndergo examination ; to confron t wit

nesses ; to produce evidence p recisely as i n ,

the case of other offenders H e had to prove.

that the homicide was purely accidental ;

that he had borne no mal ice against his
neighbour ; that he had not lain in wai t for
him to slay him O nly when the j udges
.

were convi nced that the crime was homicide

by misadventure was the culprit adjudged to
be interned i n one of the S heltering cities .

There was no scurrying i n the matter ; n o

abrupt ight ; no hot pursuit and no appeal ,

for shelter A s soon as judgment was pro

n o u n ce d the criminal was conducted to on e

of the appointed places H e was a cco m panied

.
1 14 C r i m i n a l C ode f
o t/ze years .

the whole distance by two ta l m ide c a cna m i m -

- disciples of th e rabbins The avengers of .

the blood dared not interfere with the offender

on the way To slay hi m would have been
.

murder punishable with death The cities

, .

of refuge were six i n numberthree on this

side J ordan three on the oth er They were
, .

so situate as to be almost opposite each

other H ebron i n J udah over against Be zer
.
,

i n the Wilderness ; S e ch e m i n E phraim ,

against R a a m a th G ilead ; K adesh N a ph th a l i ,

against G olan These places divided Pales

.

tine into fou r equal portions bei ng so arranged ,

that the distances from the southern bound

a ry to H ebron from H ebron to S e c h e m
, ,

from S e c h e m to K adesh and from K adesh ,

to the northern frontier were nearly identical

, .

There were excellen t roads from one to th e

other ; at intervals signposts were erected
i ndicating the way to the nearest city of
refuge A rrived at whichever of these he
.

had selected the conductors handed the

,

offender into the charge of the L evites .

 H o m icide ( identa l )
a cc ,
a nd P erj u ry . I 1 5

These allotted to him a dwelling place H e .

was i n every respect free bu t not permitted

to go beyond the boundaries of the territory
pertaining to the town H ere he remained
.

u ntil the death of the high priest Whenever .

this occurred he was at l iberty to return to

h is home T he H ebrew who had the m is
.

fortune to slay accidentally a fellow man

could likewise seek refuge temporarily i n , ,

any one of the forty two levitical cities of

-

Palestine.

The Talmud distingu ishes two ki nds of

accidental homicide one where the death is
due to the conduct or negligence of the a c
c us e d only ; the other where the deceased
,

contributed thereto by some act of his o w n .

F or instance a man is engaged bu ilding a

,

house i n a public street ; he is carrying a

heavy stone on to the roof This falls upon .

a neighbour passing below and kills him .

The victim here is not to blame I n such a .

case the culprit would h a ve been i nterned i n

a city of refuge Again a person is occupied
.
,

1 2
1 1 6 C r i m i na l C ode f
o tne yews .

i n repairing an edice situated i n a private

court to which no one but the owner has the
right of access A stranger enters ; as he
.

does so a stone falls and kills h im I n a case .

l ike this the deceas ed was con sidered as

having contributed to h is own death and n o
punishment whatever followed A father .

who chastised his son and undesignedly killed

hi m ; a teacher w h o pu nished a pupil an d
u ni ntentionally caused his death an d the
person wh o by order of the S y nh e d rin in
, ,

ic te d corporal punishment upon a culprit ,

which unfortunately terminated fatallythese

l ikewise were not interned i n a city of refuge .

The reason of these three exceptions i n the

application of th is law is self evident But in
-
.

all other cases of homicide comi ng u nder the

category before mentioned where the victi m
,

was not a contributory to his own death the ,

penalty was enforced A noteworthy e x c e p

.

tion is however found i n the Talmud There

, , .

r e side d among the J ews a great number of

so called proselytes of the gate strangers
 H o m icide ( a cciden ta l) , a nd P erj u ry .
7

who had i n all essentials adopted the H ebrew

faith I f one o f these by m isadventure killed
.

a n I sraelite he was not conducted to any of

the six cities but was s e nt back to his native
,

country The motive here is sound and

.

practical The i nternment i n a city of refuge

.

lasted as before said until the demise of the

, ,

h igh priest I f this sacred functionary was

.

a younger man than the offender the latter ,

would probably have been exiled from home

and fam ily during the whole of his lifetime .

B etter therefore urged the R abbins that he

, , ,

return at once to h is native land safe from ,

the pu rsu it of those entitled to exact ven

e a n ce for the crime he had by misadventure
g
committed A n d so i n the case of a H ebrew
.

accidentally killing a resident a g ner tnosna ,

as the rabbins term him internment was

considered u nnecessary There were n o .

relatives i n Palestine to avenge the death of

the sojou rner ; no useful purpose could there
fore be served by exiling the culprit from his
home for a nu mber of years I n the c ase of .
1 1 8 C r i m i na l C ode f
o uf en/s .

a hi gh priest dying after the condemnation of

a crim inal bu t before he arri ved at the city of
,

refuge the latter was free I f a new high

, .

priest had been elected before judgment was

pronou nced i n a trial for h om icide the intern ,

ment took place I f any person was so u n

.

fortunate as to kill accidentally the high

priest or if th is functionary was himself the
,

culprit h e was conned to one of the a p

,

pointed towns during the whole of his life

time Those who were conducted to the
.

cities of refuge for th e inadvertent murder of

a fellow man en tailed no expense upon the
-

S ta te or their friends The mother of the .

high priest supp l ied these offenders with food

and Clothing in order that they might not
,

pray for the death of her son !

The pun ishment provided for perjurers
by the Pentateuch is peculiar L ike another .

M osaic ordinance it was probably suggested

to the H ebrew legislator by the practice of
the ancient E gyptians A false witness was .

condemned to suffer whatever pains and

 H o m i ci d e ( iden ta l )
a cc , a n d P erj ur
y . 1 1 9

penalties a conviction would have entailed

upon those whom h e wrongfully accused .

Theo retically this appears extremely simple ;

its practical a ppl ica tio n wa s beset with d if

c u l ties
. N or is the lan g uage o f the B ible
su fciently expl icit in the case of sentence o f
death to render misinterpretation impossible .

We have before indicated one case where a

result of this inj unction would prove a sheer
absurdity and the perj urer escape withou t
,

any pu nishment whatever O ther instances .

are readily furn ished A man for example

.
, ,

accuses an other of accidental homicide ; the

penalty of this O ffence is internment i n a city
of refuge T he testimony is proved to be
. .

false ; the w itness perjured I s he therefore .

to be conducted to a city of refuge ! A n

offender con ned to one of these places was
not undergoing a species of imprisonment .

H e was perfectly free The only inuence.

that induced nay compelled him to remai n

,

was the dread of being slai n by the avenger

of blood A fa lse witness if conde m ned to
.
,
I 20 C r i m i na l C o de f
o tne You/s .

th is internment would have no fear of any

,

such consequences the punishment would

be ridiculous I n such a case the perjurer
.

would laugh at the sentence and practically

escape scot free Agai n a man accuses one
.
,

of his neighbours of stealing a sheep Th e .

law i n this case enj oined vefold restitution .

I f the thief be unable to pay the amount he

coul d be sold into servitude until the next
j ubilee in order to fu rn ish the money The .

prisoner in this case is fou nd to be poor .

The witness is proved to have committed

perj u ry : the accused is set free H ow was .

the individual gu ilty of a false oath to be

puni shed in this i nstance ! H e might fairly
O bj ect to being sold ; th e n eighbour whom
h e sought to rui n might justly urge that a
money penalty was by no means equivalent
to th e y e a rs of servitude he could have been
compelled to endure had the charge against
h i m been established . Th e j udges would
nd the m selves in a difculty Y e t more .

complicated was th e a pplication of the M osaic

 H o micide ( a cciden ta l) , a nd P erj u ry . I2 I

ordinance where th e sentence of death was

incurred A di fculty i n the interpretation
.

of the law occurred at the very outset The .

S adducees who a d h e i e d to the letter of

'

S cripture urged that a perj urer could not

be capitally condemned u nless the person
whom he falsely accused had already been
executed Th ey based their argu ments upon
.

the Biblical formula L ife for life Against

, .

these the rabbinists produced the M osaic

i njunction This expressly declares that the

.

false witness should be pun ished as he had ,

i ntended that the accused should suffer .

The C hemara holds the law to be both im

practicable and incomprehensible I t seems ,

however on one occasion to have b een car

,

ried into effect The insta nce is recorded i n

.

the Talmu d J udah the son of Taba i con

''

.
, ,

d e m n e d a perjurer to death he w as accord

ing l y executed Th e rabbin subsequently
.

related th e circumsta nce to S himon the son ,

o f S hatah The latter thereupon asserted

.

that i nnocen t blood had be en shed a nd e x ,

122 C r im i n a l C ode f
o tne yews .

pou nded the law to h is colleague F rom .

thenceforward the son of Tabai never p ro

n o u n c e d a judgment in the absence of S hi m on

ben S hatah ; an d every day as long as he

l ived he visited the cemetery and threw h im
self upon the grave of the witness whom he
had condemn ed To obviate any difculties
.

the Talmu d prescribed for all cases of per

j ury one uniform pun ishment stripes that
is ogging
, .

A ccording to the p rescription of the

Pentateu ch an offender sentenced to be
ogged was always pun ished in the presence
of th e S y n h e d r in that co ndemned him The .

stripes which m ight not exceed thirty n ine i n

,
-

number were i n icted mercifully A post

, .

was xed in the earth ; to this the hands of

the offender were tied The ha zan door .

keeper atten dant messenger and i n modern

, , ,

times the reader of the commu nity per

formed the duty o f executioner The culprit .

was rst stripped to the waist Two quali .

e d judges then examined h im to determine

 H o m icide ( a cc i denta l ) , a n d P erj ury . 1 23

how many stripes he was strong enough

to endure I f these experts disagreed in
.

their estimate the smaller number was a c

c e te d
p .I f they deci ded that the offender
was capable of enduring the whole th irty n ine -
,

and it was subsequently found that he was

not su fciently robust to do so pu nishmen t ,

ceased I f on the other ha n d they c o n s i

.
, ,

dered that say only eighteen stripes should

, ,

be inicted and it was afterwards seen that

,

the criminal could bear the full qu ota no ,

add ition might be made to the original esti

mate I n all cases the number xed must
.

be divisible into three even portion s that is ,

i f the judges decided the offender could bear

twenty stripes they must only award eighteen
,

i f eight only six The handle of th e whip

, .

was four ngers breadth long ; the thong of
the same breadth and long enough to cross
the body O n e of the j udg es gave the word
.

strike as the signal for each stripe another
,

kept reckoning of the nu mber a third read

three portions of S criptu re aloud during the
1 24 C r i m i n a l C ode f
o tne yews .

pun ishment ; the concluding verse being from

the Psalms ( lxxvi ii 38) .But H e being ,

merciful forg iveth iniquity
, I f at any time
.

during the ogging i nvoluntary signs of

weakness were observed the culprit was at

once released I f he succeeded in freeing

.

h imself from the post or managed to escape ,

th e punishm ent could not again be i n icted .

I f the whip broke during the ogging it was ,

not perm itted to repair the lash and continue

the strip es I n the Talmud stripes a re pre
.

scribed as the penalty of nearly all ordinary

offences of which the criminal code in those
times took cognisance A dultery immorality
.
, ,

sacrilege and public desecration of the M osai c

,

ceremon ial laws were all in the later period

of J ewish national ity pun ishable in this man
ner Practically though ogging see m s to
.
,

have been conned to perjury .

 M i scel la n eo us L a ws . I25

C HA PTE R ! .

MI SC E LLAN E O US LAWS C O N CLUS I O N .

T HE H ebrew Penal C ode necessarily includes

a number of misc ellaneous enactments not
reducible u nder general headings M any of .

these are interesting The Talmud for ex

.
,

ample recognises j ustiable homicide U nder

,
.

certain circumstances it was permissible to

kill a would b e criminal i n order to prevent
-
,

the commission of either murder or adultery

as the G h e m a ra puts it to save an i nnocent
,

man s l ife or a woman s honour

I n self .

defence ; likewise to protect one s person or
property against footpads or burglars it was
of course allowable to take away life A ny .

offence perpetrated under compulsion or i n

mortal fear was excusable in the eyes of th e
law excepting only murder and adultery
-
.
 I 26 C r i m i n a l C od e o
f ti e Ye ars .

I f a man was threatened with death u nless

he consented to assassinate a neighbour he ,

was directed rather to die than slay an inno

cen t person S i milarly the Talmud enj oins
.
,

every man to prefer death to dishonouring

u nder compulsion an innocent woman I n .

times of religious persecution it was for

b idden to violate i n public the ordinances of
th e B ible But the conditions constituting
.

such violation were clearly discriminated A .

m an might attend to an idol he m ight wash ,

and anoint it bring wood and l ights to

,

pagan temples but if ordered u nder penalty

of death to publicly acknowledge an image as
his God he was bound to refuse I f a pagan .

commanded a J ew to cu t grass for his horse

o n a S abbath day he m ight do so ; but if
ordered to cut the fodder and throw it into
the river ( i e needlessly to desecrate his faith )
. .

he was not perm itted to comply .

A nother injunction of the M osaic C ode

copied from the laws of the E gyptians
required a m a n to risk even h is life when
 M i s cel l a neo us L a ws . 12 7

he saw a fellow man in danger under the

-
,

penalty of ogging ( The E gyptians punished

.

the omission with stripes or three days im

prisonment without foo d ) S tealing a fellow

.

J ew and selling him was as we have already,

said a capital crime

,
S teal ing and con
.

c e a l in a man entailed upon the ffender

g O

public ogging A n elder or judge who

.

simply taught i n contravention of the tra

d itio n s of the Great S y n h e d rin of J e r usalem
was not condemned to death unless he ren
dered decisions in accordance wi th his heter
o d o x views and saw his j udgments carried
i nto effect . A crimi nal three times con
v ic te d and pun ished for an offence adul
te r y paganism perj ury & c entailing og
, , , .

ging was imprisoned for life A n offender

,
.

who succeeded i n escaping when led to exe

c u tio n was not reconducted when captured , ,

to the tribunal by which he was tri ed and

condemned Two witnesses deposed to th e
.

fact of his conviction before the n earest

S y nh e d r in and the sentence w a s thereupon
,
1 28 C r i m i na l C o de f
o tue yen/s .

carried out A person tried for two crimes

.
,

each entailing a different kind of death and ,

convicted of both was pun ished with the

,

least painful of the two modes of execution .

Two persons charged with a capital offence

would not be heard and j udged on the same
day ; not e v en if paramours in adultery .

C onscation of property was unk n own to

the H ebrew law a malefactor s possessions
,

al ways descending to the natural heritors .

D ouble pun ish ment dis i n i dem such as

the payment of a pecuniary penalty in addi
tion to ogging was not permissible except
, ,

i n the one instance where the iniction of

both is specially prescribed i n the Pentateuch .

T he survey necessarily brief and imper

,

fe c t here completed of the C riminal L aws of

,

the Talmud will enable even those who run

,

and read to form some idea of the H ebrew
Penal C ode and the practical mode of a d
ministering j ustice as it prevailed among the
I sraelites of old The simplicity of the
.

organ isation the m ildness of the punish

,
 M i s cel l a neo us L a ws . I 29

ments and the humanity throughout appa

,

re nt may be left to speak for themselves

, .

Before quitting the subject a few words on ,

the character of the m en who framed and

interpreted these enactments may not be
a m iss .

T h e favourite accusation hurled at the

heads of the rabbins ( apart from the ep i
th e ts prejudiced and narrow m inded ) is
-

that they adhered to the letter of the law ;

they did not inquire into the motives into ,

th e spi rit of its i nj unctions N othing can be .

more u ntrue nothing more opposed to a c tual

fact H e who would have proof of this need
.

but read a sin g le page of the Talmud or ,

have it read to h i m by some competent

scholar T h e a d herence to the letter of th e
.

Pentateu ch whic h is a l ways recommended

,

by the traditional school has a reason sound ,

and practical This is i ndicated in one of

.

the most i nteresting bits of argu ment con

ta in e d in the Treatise S y n h e d r in .

O nly one i nj u nction in the F ive Books of

K
 1 30 C r i m i n a l C o de f
o t/ze 7ezvs .

M oses is distinctly supplied with motive

the K i ng is commanded not to take unto hi m
a nu mber of wives i n order that he may n ot
,

be corrupted and led away to idolatry H ere .

the reason of the precept is d istinctly given .

The sp iri t the essen ce of the enactmen t is

,

that the S overeign be not sedu ced to pa

n is m Th e Talmud points out that the
g a .

indication of the motive i n this instance is

calculated to produce the very contrary effect
to that intended F or the following reason
.

A good man reading it will say as K ing ,

S olomon did The obj ect of this command

,

is to preserve me fro m idolatry ; surely I

need not fear being seduced to the worship
of strange deities I am not afraid of vio
.

lating th e spirit O f the law therefore I need

n ot adhere to the letter of the precept pro ,

v id e d I bear i n mind its purport Y e t the .

very self c o n d e n c e engendered by regarding

-

the motive only caused the fall of the wisest

of men F or he took h im many wives and
.

they did corrupt him The argument of the
.
 M i scel l a n eo us L a ws . I 3 1

rabbins in reference to this precept shows a

sound knowledge of hu man nature and its
peculiar weaknesses .

A s regards th e n a rr ow prej udices of the

rabbins it may be worth while again to call

,

attention to the charge addressed to wit

nesses when abou t to give evidence cau ,

tio n ing them against supposing that a J ew

was superior to the men of other nations .

.

Time after time the Talmud emphatically de

clares anent proselytism that it is not meces
sary to become a H ebrew in order to p a r
tic ipa te i n a future existence The M ishna ,

moreover narrates how on the Day of Atone

,

men t the mos t sacred and solemn fast of th e

,

year when the I sra elites sought pardon for

,

their transgressi ons seven ty additional sacri

,

c e s were offered i n the Temple to procure

remission for the iniqu i ties committed by the
seventy nations then supposed to exist .

I n the practical reg ulations of every d a y -

life the s a me liberality is apparent A paga n .

living among the J ews was not perm it ted to

K 2
l 32 C r i m i na l C ode f
o tne 7ezvs .

keep the seventh day as a S abbath if he

rested upon another day in accordance with
the custom of his own people N o man .

must be idle two days remarks the Talmud
, ,

i n each week A pagan who blasphemed
.

the Almighty was not punished ; for say ,

the rabbins he does not believe in our God
, .

These are somewhat unusual modes of mani

festing narrow mindedness and prej udice and
-

bigotry .

O f the criminal code formulated by these

rabbins it may fairly be said in the words of ,

an old C hinese adage that the pen O f the

,

law fears the thunder of H eaven N othing .
,

perhaps can be more characteristic of the

,

sp i r i t of the H ebrew penal system of its ,

treatment of offenders and of its modes of

,

punishment than the graceful saying a ttr i

buted i n the Talmud to B e r ura h wife of the ,

piou s R abbi M eier and daughter of the no

less renowned C h a n ina ben T ra d y o n The .

R abbi Mei er was plagu ed with some e x

tr e m e l y wicked neighbours Angered a t

 M i s cel l a n eo us L a ws . I 33

their discr editable c on duct he cursed them ,

.

H is gentle wife heard him N ay my hus .

,

band she said addr essing h i m cease thou ;
, , ,

call rather upon the A lmighty to turn thine

neighbours from their e vil ways that they ,

die not H ow says the sweet Psalmist of

.

I srael We do not nd L e t sinners perish ,

from Off the earth but sins ; for if sin ,

be destroyed and in iquity be blotted out ,

the earth will no longer be contaminated by

sin ners I n this spirit the H ebrew criminal
.

laws were conceived and i n this spirit were ,

they i nterpreted and adm inistered .

L ON ON
D : P RI N TE D BY

O TT WOO E
SP IS D A ND CO .
,
NE W-S T EE T
R S Q UA R E
 S M ITH E LDER , , coxs NEWBO O KS .

U nd er t e S a nc tion y HE

( R M A yE S T Y TH E Q UE E IV
I n th e pre ss with Portr aits a F a csi m il e a n d a n I n d
.

, dem y 8 y o.
, , ex , 1 8s .

THE F I F TH A N D LAS T V O LU M E O F
THE LIFE OF HIS ROYAL HIGHNESS THE PRINCE CONSORT .

By T H E O D O RE M A RT I N .

THE T H A C KE R A Y GI F T -B O O K
NE W I LL U S T RAT ED E D I IOT N O F T HA RA C KE Y 'S

8 A LLA DS '

ust p ub lish d s ma ll
.

J e ,
1 6s .

BA LLA DS .

BY W I LL I A M M A K E P E A C E T H A C K E R AY .

WIT H A P O RT RAIT O F T H E AU T H O R
A nd 5 6 I ll u s t r a tions by th e Au thor Mrs B U TLE R ( Miss E li abe t h
,

J O H N C O LL I E R H F u R N Is s G G
, .

T ho m pson ) G EO R G E D U MA U R IE R
K I L E U R N E M F I T Z G E RA L D a n d J P AT K I N S O N P rint ed on ton d
, , , .
, . .

pape r by C L AY S O N S 8: T AY LO R ; a n d e l eg an t ly b o u nd in cloth
, .
, . . .

, , ,

g ilt ed g s by B U R N e ,
.

GIF T -B O O K F O R L O VE RS O F R UR A L L IF E
T RA T T I LaNr AT
.

I LLUS E D E D I O O F
'
T HE G A M E KE E P E R HO M E

crown 8
.

ge yo . r os . 6d .

THE GA M E KE E P E R A T HO M E ;
O R, S KE T C H E S NAT U R A L HI S T O R Y R U RA L L I F E
OF
AN D P O A C HI N G
, ,

W ith 4 1 I ll u s t ra t ions specia ll y d ra wn for t h e work by C HAR LES W H Y M PE R

.

LI FE O F LI E UT .
-
GE N . S IR J A M E S O UTRA M .

By M ajor G e n er a l Sir F RE D E R I C J G O L D S M ID
- .
, C B . .
,

vols d my 8 2 . e y o .
!I n M e pr ess .

T HE A M A TE UR P OA C HE R .

By th e Au thor of T h G am ek eepe r a t H om e W i l d Life in e

a So u th ern Co u nty .

,

Crown 8 vo . 5s .

A R ULE O F PR OP OR TION F O R THE HUM A N FIGURE .

By J O H N M ARS H ALL F R C S P rof ssor of A na t omy

R oyal A cad my of Art s , . . e ,

Ill u s t ra t d by J O N S C T E T F olio in wrapp r 8 in po t fol i o

e .

e H . U HB R .
, e , s. r , 9s .

THE P O E TR Y O F A S TR O NOM Y .

By R I C H AR D A PRO C TO R Au thor of T h B or d rl an d of Sci nc

e e e e,

Sci nc By way s & C rown

.
,

e e , c . 8y o .

Lon don SM I T H E LD E R C O 5 W a t e rl oo P l ac e
: , ,
.
, 1 .
 S M ITH E LDE R , ,
C O S PUBLIC A TIO NS . .

W O R KS BY M A T T HE W A R NO L D .

L A S T E SS AY S O N C H U R C H AN D R E L I G I O N By MATTH EW
A NO !Vith a P r fac C rown 8
.

R LD e e. vo . 7s
M I ! E D E SS AY S Crown 8 9
. .

vo . s

CON T EN T D m ocr
. .

a cyE ualityI rish Ca tholicis man d B ritishL i b ra lis m P

m A G u i d t o En l i sh L i t ra tur k l a n d A F r nch C rit i c on
S e q e or r o
Fa l
MiltonA F r nch C ri t i c on Go th G or Sa n d
U m
nu N es t eces s a r zu e g e e e
e e e- e ge
L I T E R AT U R E AN D D O GM A a n E ss ay t ow ard s a Be tt er A pp h
.

sion of h B i b l F i fth E d ition C rown

re en

Th R f
e t o l l h B ib l Q u ota tions in t his E d ition add d for h rst tim
e e r e nc e s
t e e .

a t e e
.

a re
8v o 9s . .

e t e e

G O D AN D T H E B I B L E a R e i w of O bje ctions to Lit er at u r e an d

g. .

: v e
Do ma R print d fro m h C mp
g

R i w e Entir l y R vis d with
e t e o n te o r a ry ev e e e e
P r fa c C rown 8
. .
,

3 e e vo . 9s
S T P AU L AN D P R O T E S T AN T I SM W ith a n E ss ay on P u ri t a ism
. .

. n
a n d h C h u rch of En l an d Third E d tion R vis d Small crown 8
.

t e g i e e vo 4s 6d
C U LT U R E AN D ANA R C H Y an E ss ay in P ol tic al a n d Soci a l
.
, . . .

Criticis m R prin t d fro m h C / i l l M i W ith P r fac d A lt ra

: i

t ions S con d E d ition .

e
e e

7s
t e or n r a g a z ne . 3 . e e an e

O N T H E S T U D Y of C E LT I C L I T E R A T U R E
. .
,

8 8 6d vo s

F R I E N DS HIP S G A R L AN D ; be ing th e Con e rs t ions L tt rs a n d

. . . .

v a e e
O pinions of h l a t A m m i Ba ron V on Thu n d r T T k h C oll ct d a n d , ,

E d i t d with a D d i ca t ory L tt r to A d l
t e e r us - e - e n- r o nc e e
e L E of h D i l T e ph e e o e sc e n s e o, sq , , t e a y el eg r a
Smal l C own 8 , .

6d r vo .
4s . .

W O R KS B Y T H E LA TE G E O R GE HE NR Y LE WE S .

T HE S T O R Y O F G O E T H E S L I F E By G E R E H E N R L EWE
O G Y S
Crown 8
. .

6d vo 7s
T H E LIFE O F GO E T HE T hir d E d ition r is ed a ccor d in g to th e
. . .

l a t s t Doc um n t s vol W i t h P ort a it 8

.
, ev
e e 1 r vo . 1 6s
A R I S T O T LE a Ch apt e r from th e H istory of Sci enc e NVi-th A n al y s e s
. . . .

of A ristotl s S ci nt i fic W ritin g s D my 8

.

e e e vo . 1 5s
S T U D I E S I N AN I M A L L I F E W ith Colo u r ed F rontispi ec e a n d
. .

o t h r Ill u stra t ions C rown 8

.

e y o 5s
O N A C T O R S AN D T H E A RT O F A C T I N G
. .

Crown 8 7 6d . vo . s. .

W O R KS BY L E S L I E S T E PHE N .

A H I ST O R Y O F
N GL I S H T H O U G H T I N T H E E I G H T E E N T H E
C E N TU RY vols Crown 8 8 2 vo 2 s.

H O U R S I N A L I B R AR Y F irst S e ri e s By LES LIE S TEP H EN

. . .

S con d E d ition C rown 8 9

. . .

CON T EN T D fo s N ov ls Ri ch ar d son s N ov ls t
:
M E l w m
e vo .

P op a s Mor a lis
E d it i on of P op S m Wor d s ab ou t S ir Wa lt r S cottN a th an i l H aw t horn Ba l a c s

S e e e e e r. s

N ov ls

e o e e e e z
e D Q u inc y e e

H O UR S I
.

N A L I B R A R Y S e con d S e ri e s Crown 8 9
CON T EN T S ir Tho mas B rown J on a th an E d w ards W illiam La wHorac Wa lp l
. . y o . s.

Dr J ohns n s W i g C rabb s P o try W ll iam H a l i tt M D i sra l i s N ov ls

S e e o e

- o n t n s e e i z r e e

H O U R S I N A L I B RA R Y T hird S ri e s Crown 8 9
. . .

C N T EN T M a i F il d in g C owp
e vo s
r d R o u ss au E d in bur g h R vi w rs
. . . .

W or d sworth s Eth i cs n d or M ac au layC h lott B ront eK i ng sl y

O S !s n er e e an e e e e

ar e e .

Lond on SM I T H : , E L DE R ,
CO .
,
15 W a t e rl oo Pl ac e .