A 54096 7 P ... ARTES KUKT 1817 VERITAS LIBRARY UNIVERSITY OF MICHIGAN EXEMPLUTE UNUM SCIENTIA TUEBOR OF THE SI-QUÆRIS PENINSULAM AMŒNAM CIRCUMSPICE VVVVV 3. VA, NAGO. 3/31, 1):31737. Gift of St. Andrews Church |||||||||MI II" ADD⠀⠀ SERIKAN KABUR. STAUSKITE SELDSET| Borravid 7.6. Kunstne で ​لله 1429 Hillow. ки Jany 22 = 41909. ૨૨ DS 111.2 .M54 Air Arbor Mich CRIMINAL JURISPRUDENCE THE OF THE ANCIENT HEBREWS. ; COMPILED FROM THE TALMUD AND OTHER RABBINICAL WRITINGS, AND COMPARED WITH ROMAN AND ENGLISH PENAL JURISPRUDENCE. BY S. MENDELSOHN, LL. D. N RABBI CONGR. "TEMPLE OF ISRAEL," WILMINGTON, N. C. BALTIMORE: M. CURLANDER, LAW BOOKSELLER AND PUBLISHER. 1891. COPYRIGHT, 1890, BY S. MENDELSOHN. ALL RIGHTS RESERVED. - 12747 AMS. V O St. Andrews Clinche 426-47 " TO THE READER. As these paragraphs, now ready for the printer, lie before me, I imagine them in your hands, and hear you enquire after their author's object in penning and publishing them. To satisfy your natural curi- osity, I beg leave to point to the motto and to the con- clusion of this work, and to assure you that I had in view no other than the two-fold object of acquainting those to whom the Talmud is "as a sealed book" with an important part of its contents-its system of criminal jurisprudence; and of thus contributing my mite towards the vindication of the Israelitish people's ancient literature from the aspersions cast upon it by inimical and, not unfrequently, ignorant writers. Which of these motives first prompted this labor, I am unable to determine even for myself; but I trust that you will appreciate the importance of both together. Mr. Arnold has truly said: "Every thing of the nature of law has a peculiar interest and value, because it is the expression of the deliberate mind of the supreme government of society; and as history, as commonly written, records so much of the iii iv TO THE READER. passionate and unreflecting part of human nature, we are bound in fairness to acquaint ourselves with its calm and better part also." Of the many excellent German works on the par- ticular branch of Rabbinic lore treated of in these pages, I have consulted none, because I wished to let the ancient Hebrew sages speak for themselves, and not through the mouths of modern commentators. English works on this subject I have not seen, except a few articles here and there, and Vargha's chapter on the "Defense in Criminal Cases with the Ancient Hebrews. Wines's valuable work treats of the Mosaic system only. Only works of generally recognized authority have been referred to for data of historical matters as well as of Greek, Roman, or English Law. Those most frequently cited are the following: "" Arnold. Introductory Lectures on Modern History, by Thomas Arnold, D. D. Edited by Henry Reed, M. A. Philadelphia, 1857. Beccaria. Of Crimes and Punishments, by Caesar Bonesana, Mqs. di Beccaria. Quoted after the German of M. Waldeck. Berlin, 1870. ► Blackstone. Commentaries on the Laws of England, by Sir William Blackstone. Edited and an- notated by Christian Chitty and others. TO THE READER. Fiske. Manual of Classical Literature, from the Ger- man of J. J. Eschenburg, with Additions and Notes, by W. W. Fiske. Fourth Edition. Philadelphia, 1844. Gibbon. History of the Decline and Fall of the Roman Empire, by Edward Gibbon. With Notes, by the Rev. H. H. Milman. V Graetz. History of the Jews from the Earliest Times to the Present, by Prof. Dr. H. Graetz. Second (German) Edition. Leipzig Vr Hallam. Views of the State of Europe during the Middle Ages, by Henry Hallam. Montesquieu. The Spirit of Laws. Translated from the French of M. De Secondat, Baron de Mon- tesquieu. First American Edition. Philadel- phia, 1802. Plutarch. Lives. Translated and annotated by John Langhorne, D. D., and William Langhorne, A. M. Baltimore, 1830. Roscoe. A Digest of the Law of Evidence in Crimi- nal Cases, by Henry Roscoe. With Notes, &c., by George Sharswood. Philadelphia, 1836. Smith. A Dictionary of Greek and Roman Antiqui- Third Ameri- ties, by William Smith, Ph. D. can Edition. New York, 1850. 1 F vi TO THE READER. Wines. Commentaries on the Laws of the Ancient Hebrews, by E. C. Wines. New York, 1853. The paragraphs or sections, as well as the notes, are numbered consecutively, in order to facilitate reference from place to place, thereby avoiding fre- quent repetitions of rules, and saving space. With great pleasure do I hereby express my grati- tude to those gentlemen, both of the pulpit and the bar,-whose good opinion might well be an object of pride to writers of literary pretensions far higher than mine,—who have examined the Manuscript of this compendium and encouraged me with their warm ap- probation. Especially do I thank the friend who helped me to make the phraseology as smooth, and the diction as little involved, as is possible in a work of this nature. In conclusion, let me assure you that, in presenting the Rabbinic Laws, it was my constant and earnest endeavor to be correct to the letter and to the spirit of the Talmud. How far I have succeeded in this, the learned critic will be able to tell more readily than WILMINGTON, N. C., November, 1890. THE AUTHOR. CONTENTS. Introduction, §§ 1-10 ... ………………… I. CRIMES AND PUNISHMENTS. 1. As to number, §§ 11-12....... 2. Provisos, §§ 13-19........... 3. Misdemeanors, Crimes and Penalties, §§ 20-24........ 4. Capital Crimes, §§ 25-32..……………….. 5. Homicide, §§ 33-37 ...... ... ………….. ·· 6. Murder, §§ 38–44. ….. 7. Persons Indictable, §§ 45-50 ………………….. ……………. ………………… ..... ...... ..... II. THE SYNHEDRION. 1. Organization and Jurisdiction, §§ 51-56.. 2. Qualifications, §§ 57-58...... 3. Sessions and Recruitments, §§ 59–64….... 4. Honorarium, §§ 65-67........ ………….. ……………. ……………. III. THE TRIAL. 1. The Participators, §§ 68-71............ 2. Time of Trial, §§ 72–74………………….. 3. Witnesses, §§ 75-77...... 4. Cautioning Witnesses, §§ 78–79....... ……………… .. ……………. ……………. ………….. ……………………… ·· ... ……………. ……………. .... ……………… ……………... ……………. …….1 ……………. .. ·· .... ……………. …………… ......... ..... •• …………………… …………… 6 25 28 37 44 58 67 78 87 92 96 102 108 112 115 120 vii viii CONTENTS. 5. Examination, §§ 80-91....... 6. The Defendant, §§ 92-94.. 7. Disproval and Confutation, §§ 95–99 ...... ...... 8. The Deliberations, §§ 100-104. 9. The Verdict, §§ 105-113........ 10. Reversal of Judgment, §§ 114-115...... 2. MAXIMS AND RULES, § 142... CONCLUSION, §§ 143-144.. APPENDIX. INDEX. ... ……………… ...... **** IV. THE EXECUTION. 1. Between Life and Death, §§ 116-120 …...... 2. The Executioners, § 121………………. 3. The Consummation, §§ 122-127 .... 4. Posthumous Ignominies, §§ 128–133 ...... 5. Minor Punishments, §§ 134–139 ………….. 6. Rehabilitation, §§ 140-141….……………. ……….. .... .. •• .... ... ……………………. ……………………… ……………………… ** * .. ... ... ………. .. ... ……………. ... ……………………… …………… …………………… ……………. ……………………. ……………………… .... ..... 153 156 ......... 157 161 166 173 123 132 135 140 143 150 *AME an O 175 185 187 255 THE CRIMINAL JURISPRUDENCE OF THE ANCIENT HEBREWS BY S. MENDELSOHN, LL. D. "In the department of law, whatever God allotted to other ages and nations, as contributing to their mental development, must not remain strange to our people, but must be dressed up and offered to them for the enhancement of their own powers and advancement of their moral faculties." SAVIGNY. INTRODUCTION. C § 1. Whatever differences of belief people may en- tertain regarding the "Total Depravity" dogma, all admit the high antiquity of crime. Every observant reader of history, sacred or profane, becomes impressed with the idea that crime is almost coeval with the appearance of man on earth; that no age, no nation, no country, no province, ever was nor ever will be exempt from evildoers: from individuals committing acts offensive to both God and man. And were every human being allowed free scope in the indulgence of his passions and propensities; were there no restric- tive laws enacted against the disturbing of the peace 9 10 INTRODUCTION. of society, or against aggression on individual rights: 66 one might swallow the other alive." From time to time, therefore, laws are adopted, embodying certain "rules of civil conduct," of right or wrong, of what may or may not be done, and at the same time, as a matter of course, providing modes of punishment for the violation of those laws which constitute the cove- nant of social life. 2 § 2. Accordingly, the earliest penal laws were en- acted for emergencies, after the commission of the crime; and since they were framed with special refer- ¹ Aboth III, 2. Epicurus says: "The worst of laws are so necessary for us that, without them, men would devour one another."-Plutarch. 2 The immortal Plato says: "Without laws we should be like beasts." (Laws IX).-Chitty wisely remarks: "The libertas quidlibet faciendi, or the liberty of doing everything which a man's passions urge him to attempt, or his strength enables him to effect, is savage ferocity; it is the liberty of the tiger, and not the liberty of a man." (Blackstone I, 126).-Laws are, therefore, more or less the expression of man's reason, as opposed to his interest and his passion: they are, "the condi- tions under which men, leading independent and isolated lives, united themselves into societies, in order to avoid living in a state of constant warfare, although, at the same time, they cur- tailed the enjoyment of a freedom which the uncertainty of its tenure could not preserve. Of that freedom they voluntarily renounced a part, in order to enjoy the remainder in peace and security" (Beccaria, § 1). 3 "Law, without sanctions or penalties annexed, is no law, but only counsel, or more or less plausible advice. It becomes law only when, in addition to the precept, there is affixed a penalty for transgression." (Haven, Moral Philosophy, p. 289. Cf. Blackstone I, 57; infra, n. 202). INTRODUCTION. 11 ence to immediate occasions, they were dictated rather by blind popular impulse, than by the logical conclu- sions reached by the calm deliberations of legisla- tive wisdom. And although it is in the interest of the people, themselves subject to the laws, to make them as mild as possible, yet inasmuch as the fear of being injured is always more prevalent than the intention of injuring, people are usually influenced by first impressions, and enact cruel laws.-We must not, however, be understood to imply that the early laws were dictated by the free will of the people. On the contrary, in the first stages of the social development of mankind, individuals were the law- makers. But these law-makers were themselves con- trolled by the influences which prejudiced the popu- lar mind. The natural consequence was that exces- sive severity prevailed, which, in the progress of time, was meliorated principally by the evasion of those very laws which originally were enacted for the con- servation of the safety and peace of society. The oppo- site extreme, undue laxity, succeeded, and destroyed the principles of justice. Thus we are told that, "as the manners of Rome were insensibly polished, 4 Cf. Beccaria, § 34.-If we cast a glance at history, we shall see that laws which, properly speaking, are or ought to be com- pacts between free people, have generally been nothing but the instrument of the passions of some few men, or the result of some accidental and transitory necessity. They have never been dictated by the unimpassioned judge of human nature who is able to concentrate the actions of a multitude of men into a single point of view, and to consider them from that point only:- The greatest happiness for the greatest number (ib. Introduction). 12 INTRODUCTION. + W 6 the criminal code of Decemvirs was abolished by the humanity of the accusers, witnesses and judges, and impunity became the consequence of immoderate rigor. "5 The same was the result of the bloody en- actments of Draco, who affixed the penalty of death to almost all crimes alike-to petty thefts, for in- stance, as well as to sacrilege and murder, — and being asked, why he made death the punishment of most offenses, answered, "Small ones deserve it, and I can find no greater for the most heinous." § 3. But we need not climb so very high on the ladder of time in search of harsh and severe laws. The old codes of most civilized nations of the modern epoch are almost as liberal in dispensing capital punishment. 5 Gibbon c. XLIV.-Excessive severity of laws hinders their execution. Where the punishment surpasses all measure, people are obliged to prefer impunity to the laws (cf. Montesquieu, B. VI, c. XIII). “The laws of Draco, written—says Demades-not with ink, but with blood, had the same fate as usually attends all violent things. Sentiments of humanity in the judges, compassion for the accused, whom they were wont to look upon rather as un- fortunate than criminal, and the apprehensions the accusers and witnesses were under of rendering themselves odious to the people, all concurred to produce a remissness in the execu- tion of the laws which, by that means, in the process of time, became as it were abrogated through disuse: and thus an exces- sive rigor paved the way for impunity.”—Rollin, Ancient His- tory, B. V, Art. VIII. "Plutarch, Life of Solon. Conf. Smith's History of Greece, c. X, 6.—Schiller (Legislation of Lycurgus and Solon) would account for this severity by the fact that "Draco's laws are the attempt of a beginner in the art of governing men;" but harsh legislation was not a peculiarity of the earliest legislators. INTRODUCTION. 13 Nor may we hold up as examples deserving universal condemnation, those codes which have for their chief elements the decrees of the Civil Law of Rome-the tablets of the decemvirs," the Pandects and the Insti- tutes, where sanguinary despotism wielded undisputed sway. The code of England, where public legisla- tion has, for centuries back, been deeply influenced by popular opinion, was down to a comparatively re- cent date, extremely cruel and blood-thirsty. Black- stone states that in his time, "among the variety of actions which men are daily liable to commit, no less than one hundred and sixty were held, by act of parlia- ment, to be felonies without benefit of clergy; or, in other words, to be worthy of instant death."—It is * - 8 Montesquieu (B. VI, c. XV) says of them, "The law of the twelve tables is full of very cruel punishment," and the reader of these pages will find abundant proof to convince him not only of the truth of Montesquieu's statement, but also that subsequent Roman legislation was almost equally as cruel. 9 Commentaries IV, 8.-This was written about the year 1760, and in 1809-says the American annotator to Arnold's Lectures on Modern History (n. 9 ad L. V)—when Sir Samuel Romilly devoted himself to the arduous and admirable labor of bringing about a reformation of the criminal law of Eng- land, it is stated by Mr. Alison, in his History of Europe (chap. 60), that the punishment of death was by statute affixed to the fearful and almost incredible number of above six hundred differ- ent crimes, "while the increasing humanity of the age had in- duced so wide a departure from the strict letter of the law, that out of 1782 persons capitally convicted at the Old Bailey in seven years, from 1803 to 1810, only one had been executed.” Well has Landor, in one of his 'Imaginary Conversa- tions,' put these words into the mouth of Romilly: "I am ready to believe that Draco himself did not punish so many * * 14 INTRODUCTION. true that the criminal laws of the United States are incomparably more lenient and humane, visiting with death nine crimes only, and that the penal code of this country is, compared with the enactments of other nations, justly held up as an example of moderation, of the wise accommodation of the spirit of justice to the philanthropic views resulting from an advance of civili- zation. But we must not forget that the laws of this country are comparatively new, that they carry within them the practical wisdom of tens of centuries, that they are the very latest out-growths of civilization. § 4. In view of these facts, how greatly must our curiosity become excited when we are assured that "it would not be easy to find a more humane, almost refined, penal legislation, from the days of the old world to our own, ''10 than that of the ancient Hebrews. S offenses with blood as we do, although he punished with blood every one. We punish with death certain offenses which Draco did not even note as crimes, and many others had not yet sprung up in society." It is only lately [this was written in 1845,] that the reform begun by Romilly, which the sad catastrophe of his life prevented his witnessing, has been completed so far as to limit capital punishment very much to crimes affecting directly or indirectly the security of life, instead of property. In 1837, Parliament (by the acts of 7th Will. IV, and 1st Victoria) removed the punishment of death from about 200 offenses, and it is now left applicable to treason, murder and attempts at murder, arson with danger to life, and to piracies, burglaries, and robberies, when aggravated by cruelty and violence. 10 Deutsch on "The Talmud" in the London Quarterly Review for Oct. 1867.-"In no other nation were ever current such simple forms of criminal investigation, such ample safeguards for the accused; nowhere, so much as here, has conscientious practice so far surpassed a highly liberal theory, above all, in INTRODUCTION. 15 -- 11 From the following paragraphs it will be seen that the system of criminal jurisprudence of the Ancient Hebrews, as recorded in the Talmud and in contem- poraneous Rabbinic literature, was one which enforced civil order and secured the safety and peace of society by mildness and consideration, tempering justice with a love of humanity, and all this in an age of savagery and violence, of wars and uncertainty; in an age when among surrounding nations "the life and death of a citizen was determined with less caution and delay than the most ordinary question of covenant and inher- itance. "'" In our opinion, even though the judiciary system of the ancient Hebrews, preserved in the Tal- mud and other Rabbinic writings, be not acknowledged the exemplar of polity among modern governments, or as the universal fountain for general legislation, it certainly deserves better treatment at the hands of the critic than the generality of even modern writers are willing to accord to it. The Christian world stig- matizes the Talmudic system as "cruel, vindictive, sanguinary;" but it does so without good reason,―aye, without attempting to find a reason 12 But we shall let the Talmud speak for itself. 13 - point of humanity."-Vargha, Defense in Criminal Cases, c. I, § 1. 11 Gibbon, Rome, c. XLIV. 12 It is refreshing to the candid student to meet with an un- biased opinion of Ancient Jewish laws and criminal procedure, and we therefore transcribe a few more lines from Vargha (1. c). "No one of the old systems of procedure for the punishment of crime was more humane than the Jewish; and yet none has been more grievously calumniated, for now nearly twenty cen- 16 INTRODUCTION. § 5. Only in the last half of last century, and in the face of constitutional government, we hear the great institutional writer and commentator crying out, in disgust and horror, against the inequality and cruelty of the penal code of his country. He observes: "A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative, or the strength of the exe- cutive power. It is a kind of quackery in govern- ment, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind; yet that magistrate must be esteemed both a weak . turies, because of its cruelty as exposed in the alleged trial of Jesus. The Christian nations, persecutors of the Jews as they were, must needs even in this department, distort and slander the institutions of the dispersed people, unwilling, as they were, to acknowledge that its laws far surpassed their own in wisdom and in moderation.” 13 The name of the gigantic work whose compilation extends over a thousand years, from which mainly the following sylla- bus is compiled, is derived from the Hebrew radix Lamad-to learn (i. e. study, in contra-distinction to the Pentateuch gen- erally styled Torah-Law), and is the collective name of the Mishnah (a kind of second law, Deuterosis) and Guemara (dis- cussion, complement, doctrines, its radix Gamar answering to either).—The Talmud is, in the full sense of the word, the liter ature of the ancient Jews. It treats of religious, civil and criminal law; of history, mathematics, astronomy, medicine, metaphysics, theosophy.-For a comprehensive view of this repository of ancient Jewish art and science the reader is respectfully referred to the appended excursus. A INTRODUCTION. 17 9914 and cruel surgeon, who cuts off every limb which through ignorance or indolence he will not attempt to cure. § 6. These were Blackstone's cries as late as one hundred years ago; while the Talmud, some eighteen hundred years ago, stigmatized the Synhedrion (Synod, Court) that condemned to death one human being in the course of every seven years, as a murderous tri- bunal; and R. Elazar ben Azaria considers it so, if it passes a sentence of death once in seventy years 15 Moreover, Blackstone merely advocates the adoption of a scale of crimes and of a corresponding scale of penalties, but does not deprecate the infliction of capital punishment "when the offender appears incor- rigible;" while such leaders among the Jews as R. Tryphon and R. Akiba declare that, had they been members of the Synhedrion during the period of its full judicial power, a sentence of death should never have been passed 18 These, however, are views of individuals only; let us compare laws. 16 K 14 Commentaries IV, 17. One might fancy he hears the plaints of Epicurus: "As we formerly suffered from wicked- ness, so we now suffer from the laws."-Tacitus, Annal. III, 25. 15 Maccoth 7a; Maimonides, H. Sanhedrin XIV, 10. 16 L. c. p. 18. 17 L. c. p. 12. Incorrigibility "may be collected either from the perpetration of some one crime of deep malignity, or from a repetition of minuter offenses.” 18 Maccoth 1. c.-i. e. by a searching and perplexing exami- nation of the accusing witnesses, they would have rendered a legal conviction next to impossible. (Cf. infra. § 91, n. 304). While the Rabbis were quite unacquainted with the modern refined sentiment which represents the reformation of the crim- + 2 18 INTRODUCTION. § 7. We have just seen that in England, only one hundred years ago, the different offenses, which men inal as the only legitimate end of punishment; while they had no sympathy with that mawkish philanthropy which pours forth floods of tears over the fate of the hardened perpetrator of crime, so that it has scarcely one left to mingle with those of the unhappy victims of his villainies,-they shrunk from inflicting the death penalty, and endeavored to secure the safety and peace of society and the vindication of law and justice by other means. (Cf. infra. § 24). There are many jurists and moralists to-day who would gladly see capital punishment abolished, and that not because they doubt the right of the law to impose it, but because they con- scientiously believe that it is not an adequate retribution for certain heinous crimes. On the contrary, owing to the circum- stances usually consequent upon conviction, death seems to be a blessing to many a culprit. Out of the numbers of criminals that are annually despatched by warrant of law, how many do not ascend the scaffold shouting with joy that they are "going to heaven?" How many are not made to believe that, with the suspension of their bodies, their spirits hie to the realms of eternal bliss? In fact, death on the gallows is to some a passport to heaven! Imagine a man thoroughly depraved and "fallen from grace." His days he spends in devising evil; his evenings, in the practice of the grossest immoralities; his midnights, in despoiling his neighbors. He is apprehended, legally tried, duly convicted and judicially sentenced to the gallows; but also given ample time for "repentance and regeneration." Jus- tice dons the cloak of mercy. Instead of being executed soon after conviction for the purpose of example, the culprit is placed in a cell accessible to every pious minister of the Gospel, who does not delay offering to "the victim of the law" the consolation of religion. Almost day and night he is attended by godly men who cram his mind with metaphysical disserta- tions on the efficacy of prayer and repentance, and on the eter- nal mercy of God whose arms are ever open to receive the INTRODUCTION. 19 are daily liable to commit, and for the commission of each of which the highest penalty was inflicted, num- bered not less than one hundred and sixty. Among the ancient Hebrews-where idolatry, witchcraft, human immolation, blasphemy, false prophecy, and other transgressions of a purely religious character, which in our age men are not liable to commit daily, were considered capital crimes-the entire number of capital offenses amounted to thirty-six only," or to less than one- fourth of the number of offenses for which death was the punishment, by the law of a constitutional gov- ernment, in which the people had voice and influence, and which did not have to take into consideration idolatry, human sacrifices and the like. - repentant sinner, especially such an one as the prisoner himself. Thus continually, and for weeks, worked upon, he is gradually made to fancy that a gracious reception awaits him beyond the grave. Indeed he even asserts that he would not now exchange his lot for that of any man who, however honest and good a life he may have led, is not as well prepared to die as himself,-is death a punishment to such a man? Is it not rather a deliverance from a prospective life of gloomy thoughts and frightful dreams, and of remorse for a life of villainy and shame? And the worst of it is that this picture is not drawn 'from fancy, but from careful observation.-May the advocates of the jus gladii earnestly think about this. 19 Maimon, H. Sanh. XV, 12. Cf. infra § 25.-We say that the number of capital offenses, according to Talmudic law, inclusive of the several deadly sins of a purely religious char- acter, amounted to thirty-six; but on proper classification of the various offenses under their respective general headings, we find twelve only, and even less than that (v. infra § 30 and note 101); and leaving out of consideration the crimes of idolatry, witchcraft, blasphemy, violation of the Sabbath and false pro- 20 INTRODUCTION. § 8. As a still greater proof of the great humanity of Talmudic jurisprudence, we mention the early abro- gation of the lex talionis, with which one frequently meets in the legislations of most ancient nations, and traces of which are discernible on the pages of the codes even of some modern countries. The forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, was rigorously exacted by the Romans. 20 Also "by the ancient law of England, he that maimed any man, whereby he [the latter] lost any part of his body, was sentenced to lose the like part: membrum pro membro."' 21 This unequal and inhuman princi- ple, though literally prescribed by Moses, 22 was early abolished by a Rabbinic law substituting a pecuniary equivalent. 23 In the same manner the Talmud abol- phecy-all sins against God,-we find the number of crimes punishable with death by Talmudic jurisprudence, dwindle down to eight, or one less than that on the code of the United States! 20 Gibbon 1. c. 21 Blackstone IV, 206. 22 Exodus XXI, 23 sq. 23 Sifra Emor § 20; B. Kama 83b sq.; Maimon. H. Hobel I, 3-5.-And even this commutation the Talmudists did not auth- orize individuals to determine for themselves, and thus they prevented every man from becoming at once client, judge and avenger in his own cause. In every instance of the application of this principle it was the duty of the regularly constituted judiciary to adjudge and enforce compliance (Mekhilta Nezikin § 8; B. Kama 91ª, et al. Cf. infra n. 148, 355). Even Kant, the most zealous advocate of the theory of retali- ation as the only principle of penal law affording a measure for punishment, is forced to admit its inadequacy in certain cases of crime, and its inapplicability to others; and finally advises us INTRODUCTION. 21 ished the Mosaic law ordaining, that the hand of a woman committing a certain immodest act,24 should be cut off, by substituting a pecuniary forfeiture. 25 >> 26 § 9. Above all and most vividly is the clemency, pervading the ancient Hebrew code, manifested in the rules by which the judges were to direct all proceed- ings against the accused. Imbued with the humane maxim: "Whosoever occasions the destruction of a single life, is as great a sinner as if he had destroyed the whole world; and, on the other hand, whoso brings about the preservation of a single life, is as meritorious as if he had preserved the whole world, the Rabbis, sitting in judgment over a human being, laid every possible, but legitimate obstacle in the way of conviction. Almost every page of the Talmud, treating of criminal law, testifies that the Hebrew sages truly and conscientiously believed in, and practised according to their doctrine: "Whosoever compassion- ates a human being obtains compassion from Hea- ven. "27 Accordingly they employed every legal means to arrive at an acquittal of the prisoner, to save the life of the accused. It is true, occasionally great rigor was exercised under the Talmudic dispensation. 28 to seek for a generic notion only of the offense, and to apply that to the criminal, (Rechtslehre, Part I, App. 5). Thus also Blackstone (cf. B. IV, p. 12, sq.) 24 Deut. XXV, 11–12. 25 Sifre II, § 293; B. Kama 28ª. B. Kama 11ª; Sanh. 37ª. Cf. infra § 79. 27 Sabbath 151ª. There is no positive law, how equitable soever, that may not be sometimes capable of injustice * * And indeed the f 22 INTRODUCTION. For instance, it is reported that, for the simple sin of riding a mule on the Sabbath, the convict was sen- tenced to suffer death by stoning; 29 and another, for a gross violation of the laws of modesty, to be flagel- lated. 30 But such instances are very rare in the Tal- mud, and it is doubtful whether their equals are to be found in the acts of the Synhedrion. These, indeed, are said to have occurred at a time when Gre- cian invasion had demoralized the populace, when the authority of the Rabbis seemed to be unable to check the rapid progress of wickedness,-in short, when extreme rigor alone could hope to effect a wholesome. reformation in the manners of the masses.31 In gen- eral, however, the spirit pervading the criminal juris- prudence of the ancient Hebrews-if not tending to- ward the total abolition of capital punishment-is C play V experience of every age may serve to vindicate the assertion: no law could be more just than that called 'læsæ majestis,' when Rome was governed by emperors. It was but reasonable that every conspiracy against the administration should be detected and punished; yet what terrible slaughter succeeded in conse- quence of its enacting; proscriptions, stranglings, poisonings, in almost every family of distinction, yet all done in a legal way; every criminal had his trial, and lost his life by a major- ity of witnesses."-Goldsmith, Letters of a Ch. Philos. LXXX. 29 Cf. infra § 26. 30 Yebamoth 90%; Sanh. 46. 31 Ibid. Cnf. infra §§ 37, 73.—Sir Matthew Hale writes: "When offenses grow numerous, frequent and dangerous to a Kingdom or State, destructive and highly pernicious to civil societies, and to the great insecurity and danger of the Kingdom or its inhabitants, severe punishment and even death itself is necessary to be annexed to laws in many cases by the prudence of law- givers."-Blackstone IV, 9. INTRODUCTION. 23 certainly humane and considerate. While seeking to do justice and punish crime, in order to insure the safety and peace of society, the Rabbis endeavored to save life and limb whenever it was in any way pos- sible. 32 § 10. Our favorable opinion regarding the humane tendency of the system of Talmudic criminal juris- prudence will be confirmed and strengthened in the course of our enquiry concerning the rules and usages by which, according to the Rabbis, were to be directed the trial and execution of the criminal under that dispensation-a dispensation the dissertations on which "have exhausted so many learned lives, and clothed the walls of such spacious libraries." In the following pages we purpose to furnish a com- prehensive, though succinct syllabus of the principal penal statutes as established by the ancient Jewish teachers, and preserved in the Talmud and in con- temporaneous Rabbinic literature. Eschewing all platitudes and logomachies with which the laws are strangely mixed up, we shall furnish a clear insight into a system of jurisprudence which has occupied thousands of great minds in ages past, and which is almost a sealed Book to the present, though it con- tains abundant food for thought even for the future. The whole mass of laws we propose to classify under the following four captions: 32 By justice I understand nothing but the bond which is neces- sary for the conservation of individual interests, and for pre- venting them from relapsing into their original state of dissocia- tion. All penalties overstepping the bounds necessary for the preservation of this bond, are naturally unjust. (Beccaria § 2). • 24 INTRODUCTION. I. Crimes and Punishments. II. The Synhedrion. III. The Trial. IV. The Execution. Each of these general divisions will, or course, have to be subdivided under special heads or sections, inas- much as there are different crimes and different pen- alties, different cases and different courts. But while. our aim shall always be to lay before our readers a clear and correct portraiture of our intricate subject, we shall endeavor to be brief, and not tax their patience too much. I. CRIMES AND PUNISHMENTS. 1. As To NUMBER. § 11. A person acquainted with the hermeneutic rules, by the application of which the ancient Hebrew exegetists and jurists plausibly established, on Scrip- tural dicta, decisions and decrees concerning each and all of the varied situations in life,33 a person familiar 33 Cf. Appendix-The Talmud is avowedly based on the firm belief in the permanence and immutability of the Scriptural laws. (cf. infra n. 100). But it must be remembered that there can be but little relation between human actions that are constantly changing, and laws that are fixed and immobile. We see almost daily that, however large the number of our laws is, it still holds no manner of proportion to the diversity of cases, and it is safe to prophesy that the multiplication of our inventions will never equal the variety of questions. Therefore have the Rabbis estab- lished exegetical rules, comprehensive and elastic, by which occurrences of the future might be coupled and compared with those already decided and recorded, and judgment passed in ac- cordance with the circumstances. According to those rules, a great many laws and decisions (Halakhoth), especially a number of those treating of capital punishment, were established long after the jus gladii had been taken from the Jews by the Romans (cf. infra n. 224 sq.), and were, therefore, never applied practi- cally. Hebrew jurisprudence was deprived of the power of en- forcing its enactments decades before the beginning of the Chris- tian era, but, as a science, it continued to be studied and elabo- rated for centuries thereafter, the Rabbinic maxim being: "Study, philosophize, and thou shalt be rewarded" (cf. infra n. 87, 109). 25 26 CRIMES AND PUNISHMENTS. ,, 34 with Rabbinic readiness to multiply "guard-laws,' might easily suppose that, in the Talmud, there is no end to the number of penal offenses. And, indeed, our impression receives apparent confirmation, when we learn that the Talmud finds in the Pentateuch six hun- dred and thirteen ordinances,-"of these, three hun- dred and sixty-five (corresponding to the number of days in the solar year) are prohibitive, and the remain- ing two hundred and forty-eight (corresponding to the number of bones in the human body), are positive commands, each of which the Israelite must strict- ly observe, or be accounted a transgressor, and sub- jected to punishment! > 35 § 12. Nevertheless, without fear of tenable contra- diction, we declare such an idea to be altogether un- warranted by the spirit of Talmudic jurisprudence. Talmudic jurisprudence inflicts punishment for such transgressions only as are accompanied by bodily ac- tion. 36 Now, as violations of laws may be committed 34 Sepes legis. The Rabbinic term thus rendered, is S'iag-fence, i.e. outworks, barriers to protect and maintain inviolable the ordinances, both Biblical and Talmudical. 35 Maccoth 23. 36 Sanh. 63ª, et al.-Among ancient nations we find instances, where mere thoughts were punished capitally. Thus, because Marsyas dreamed that he had cut Dionysius's throat, the tyrant put him to death, arguing that he would never have dreamt of such a thing by night, had he not thought of it by day (Montes- quieu, B. XII, c. XI). By Talmudic law, only actions are sub- ject to punishment. Exceptions are: taking vain oaths, substi- tuting an inferior offering for something dedicated, and cursing by the ineffable name of God, which, though not accompanied by bodily action, subject the offender to the penalty of flagellation Me AS TO NUMBER. 27 in two ways, either by omission or commission: by not doing that which ought to be done, or by doing that which ought not to be done-it is clearly seen that, according to this principle, no punishment can be inflicted for the violation of any or all of the two hundred and forty-eight positive commands, and of a large number of the prohibitive, where the transgres- sion is not accomplished by means of bodily action. (Shebuoth 21a, Temurah 3a). The same is the rule in some cases of false testimony and slander (cf. infra § 31, n. 62, 323). 37 Thus, with reference to the instigator to apostasy, the Rabbis find in the Scriptural dictum (Deut. XIII, 9) the following five prohibitive precepts: 1. Not to love him (Abah—to long for); 2. Not to cease hating him (Shama—to listen to complacently); 3. Not to have mercy on him; 4. Not to defend him; 5. Not to withhold condemning testimony against him (Sifre II, § 89; Sanh. 29, 33, 67, 85b). Of these, only a transgression of the third may become subject to punishment, for only that one may be attended by bodily action, as when the culprit is in danger and one saves him.-Nor is any punishment attached to the transgression of a general prohibition, not followed by specifi- cations (Lav shebikhlaloth). E. g. on the Biblical prohibition: "Ye shall not eat with the blood" (Lev. X1X, 26), the Talmud bases a number of prohibitions; to wit: 1. Not to eat of an ani- mal until after all its blood has passed out; 2. Not to eat of the sacrifice, before the blood has been duly sprinkled upon the altar (cf. Lev. I, 5, 11, et al.); 3. Not to treat the mourners, for legally executed criminals, to the breakfast customary in other cases of death (cf. infra § 132); 4. That the judges eat nothing on the day they order the shedding of a man's blood, i. e. a capital execution (cf. infra § 113). Now, as all these pro- hibitions are based on one general prohibitive precept, wihle none is specifically mentioned in the Bible, the transgressor may not be punished, though the transgression of each of them can be accomplished by means of physical action only (San- hedrin 63ª, Pesahim 24ª). 28 CRIMES AND PUNISHMENTS. Thus, more than one-half of the entire number of all possible transgressions, is at once cut off from liability to punishment; and, in those remaining, there is again a considerable falling off, owing to the enactment ex- empting from corporal punishment the violation— though it be accompanied by physical action-of such prohibitions, like stealing and robbing, as may be ad- justed or counteracted by restitution, 38 or by a subse- quent compliance with the positive command concern- ing the same case. 39 2. PROVISOs. § 13. The Talmud adopts all the conditions and provisos under which the Mosaic law punishes crime. Unless the culprit was fully conscious of the culpa- bility of his action, knowing while committing the deed, that it was against the spirit and the letter of the law, and unless his guilt was subsequently proved, beyond the least doubt, by at least two trustworthy wit- 38 Maccoth 16ª; Maimon. H. Sanh. XVIII, 2. 39 Ibid; Hullin 141ª.-Thus, concerning the removal of the mother-bird together with her young ones from their nest, the Bible (Deut. XXII, 6, 7), contains a prohibitive, followed by a positive ordinance; viz: "Thou shalt not take the mother with her young ones," and then, "Thou shalt surely let the mother go." Now, if a man happens to violate the prohibition by cap- turing the mother together with her young ones, he ought to be punished as for the violation of any other negative precept, when accompanied by a bodily act; yet in this case he is not punished, but made to comply with the positive command-to "let the mother go." If, however, after being duly cautioned of his guilt and its consequent penalty (cf. infra § 15), he still refuses to obey the law, due punishment is awarded to him. • PROVISOS. 29 nesses, 40 and before a competent tribunal," he could not be capitally, or even corporally punished. And even where there appeared a legal number of duly qualified witnesses, their testimony was insufficient to convict," unless they agreed not only with regard to the priso- ner's offense, but also with regard to the mode of com- mitting it. 43 Rabbinic law does not subject a person. to capital, nor even to corporal punishment, unless all witnesses charge him with one and the same criminal act, their statements fully agreeing in the main cir- cumstances, and declaring that they saw one another, while seeing him engaged in the crime. 44 42 40 Cf. infra § 75 sq. 41 Cf. infra § 69.—The courts of a feudal barony or manor required neither the knowledge of positive law, nor the dictates of natural sagacity. In all doubtful cases, and especially where a crime not capable of notorious proof was charged, the combat was awarded; and God, they deemed, was the judge. * * * In criminal cases, the appellant suffered, in the event of defeat, the same punishment which the law awarded to the offense of which he accused his adversary (Hallam, Middle Ages c. II, P. 2). 42 By the law of England, an accusation of treason, the only one which required two witnesses for the prosecution, was con- sidered duly authenticated when one witness testified to one overt act, and the other to another overt act of the same species of treason (Blackstone, IV, 357). 43 Mekhilta Mishp. § 20; Sanh. 30b; Maimon. H. Sanh. IV, 1; ibid H. Eduth II, 2.—E. g. when two witnesses accuse a person of having committed idolatry, but one of them denounces him for having paid homage to the sun, and the other for hav- ing worshipped the moon; or when two witnesses charge him with murder, but one testifies that the killing was done with a sword, while the other avers that it was with a dagger,—their testimony in either case is invalid. 44 Maccoth 6b; Sahn. 30a. Cf. infra § 83, n. 291. 30 CRIMES AND PUNISHMENTS. § 14. Nor does Talmudic jurisprudence inflict pun- ishment on a person acting under constraint (duress per minas). A person committing an unlawful act while his will is not free, cannot be condemned to die for his misdeed. The fear of death, threatened in the event of non-compliance with an order to commit a crime, is an excuse for the commission. The main object of law-the Rabbinic jurists argue-is the pro- motion of the good of society, not its detriment. Scrip- ture teaches: "Ye shall observe my statutes and my ordinances, which if a man practise, he shall live through them," from which we are to infer that no one is bound to die through them, i. e. to imperil his existence for the sake of their observance. 46 § 15. This argument, however, the Rabbis do not adduce to exempt one from due punishment for homi- cide. In cases of shedding innocent blood, they do not consider duress a valid excuse. 47 Neither is that 45 Lev. XVIII, 5. 46 Sanh. 74ª; Maimon. H. Yesode Torah V, 1 sq. The modern legal maxim says. Hominum causa jus constitutum est: Law is established for the benefit of man. 47 The Talmudic rules of conduct, in cases of threatened dan- ger, are based on the natural law of self-preservation, and say: "Thy life should be dearer to thee than that of thy neighbor" (B. Metz. 62º); "Thy property thou mayest prefer to that of another." (ibid 30). Accordingly, when two men are in dan- ger of losing their lives, and one can save himself by increas- ing the danger of the other, he may do so with impunity; or when the property of two men is endangered, each of them is at liberty to save his own, though he thereby increases the danger of his neighbor's. But when an individual's life is endangered, and can be saved only by imperilling the innocent life of another, PROVISOS. 31 argument applied to exempt the male from the penalty of the sexual sins, when he commits the crime under duress. 48 person the case is different. He must sacrifice his life rather than commit the crime. Accordingly, the Talmud (Sanh. 74ª) relates that a heathen once ordered his Jewish subject, on pain of death, to assassinate a certain person. The terrified Jew applied to a Rabbi for legal advice in his dilemma, and the Rabbi readily decided that, in such cases, one must suffer himself to be slain, rather than commit so heinous a crime; for no mortal, argued he, can assert with any degree of certainty which of the two- the threatened or the intended victim-is possessed of the more aristocratic blood: which of the two is the worthier life.-In common law a like distinction is made between "positive crimes, so created by the laws of society," and "natural offenses, so declared by the law of God." (Blackstone IV, 30). The Tal- mudic law, however, extends the divine precept: "Thou shalt love thy neighbor as thyself" (Lev. XIX, 18) even beyond rejecting the idea of paying so dear a ransom for one's own life as to kill an innocent person. The Rabbis teach that when people are required to deliver one of their number to be mur- dered, they must refuse compliance at the risk of their lives (Tosefta Terum. VII, end; Yerush. ib. VIII, § 10, p. 46b; Mai- mon. H. Yesode Torah V, 5); and some recommend the same course even when the people themselves are not required to have any hand in the matter; as when a tyrant requires of them simply to disclose the whereabouts of the intended victim of his injustice (cf. Magen Abraham ad O. Hayim c. 156, based on Sabbath 33¹ ). 48 Yebamoth 53b. Cf. Exodus R. c. XIV,-Its application to cases of idolatry depends on circumstances. Where religious persecutions prevail, or when spectators are present, one must resist all constraint, even at the risk of his life; but in private, and simply to gratify the whim of a tyrant, he may conform to the iniquitous behest, rather than forfeit his earthly exist- ence (Sanh. 74ª; Ab. Zarah 27; Maimon. H. Yes. Torah V, 2). 32 CRIMES AND PUNISHMENTS. § 16. But Rabbinic humanity was not satisfied even with all the provisos thus far enumerated. The anxious desire of the ancient Hebrew sages to save life and limb, invented an additional proviso which certainly precluded every possibility of convicting of crimes which, through ignorance of the law, men are liable to commit.49 This proviso is the ANTECEDENT WARNING which Talmudic jurisprudence requires not alone in cases involving life and death,50 but even in minor cases, where only corporal punishment is the consequence. The warning has to be administered immediately before the commission of the misdeed.52 If any time elapses between the warning and the exe- cution of the crime, the culprit cannot be sentenced to death, if the crime is capital; he cannot be whipped, if the offense is subject to corporal punishment.- Moreover, the warning must expressly state the pen- alty to which the would-be offender might be liable, whether corporal or capital; and if capital, the par- ticular mode of death must be mentioned. 53 Further- more, the would-be offender must acknowledge the warning, or it is of no force. He must signify his readiness, as the case may be, to die for the execution of his intention, or to suffer corporal punishment; he 51 Ad 49 Among the Romans, the degrees of guilt, and the modes of punishment, were too often determined by the discretion of the rulers; and the subject was left in ignorance of the legal danger which he might incur by every action of his life (Gibbon XLIV); and in other countries it was the same (cf. infra n. 355). 50 Sanh. 8b, et al. 51 Maccoth 16a; Maimon. H. Sanh. XIV, 4. 52 Sanh. 42a; Maimon. ib. XII, 2. 53 Sanh. 8b; Maimon. ib. PROVISOS. 33 must say to his monitor: I am fully cognizant of the law and of the inevitable consequences of its infrac- tion, or something similar, 54 else the court cannot consider the condition complied with. In making this proviso, the Talmud assumes an unique position. This requirement has no equal in ancient or modern law. By the laws of the modern civilized world, only ignorance or mistake of fact excuses the crime, but not error in point of law;55 while Talmudic jurispru- dence allows conviction only when the criminal is not ignorant of even the slightest point of law and, know- ing the law, and being forewarned of the necessary consequences of his intended violation, still sins with a high hand, thus clearly manifesting his presumptu- ousness or malice prepense, without proving which there can be no legal conviction. 57 - Ang 54 Sanh. 40b; Maimon. ibid. 55 If a man, intending to kill a thief or a housebreaker in his. own house, by mistake kills one of his own family, this is no criminal action; but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so; this is willful murder. For a mistake in point of law, which every person of discretion not only may know, but is bound and presumed to know, is in criminal cases no sort of defense. Ignorantia juris, quod quisque tenetur scire, neminem ex- cusat, is as well a maxim of our own law, as it was of the Roman (Blackstone IV, 27). By Rabbinic law presumption of acquaintance with the law could not convict, wherefore even the scholar rendered himself liable to punishment only after being duly warned (Sanh. 8b, et al.) 56 Sanh. 8b; Maimon. H. Is. Biah. I, 3; H. Sanh. XII, 2. 57 In this respect, the Rabbis agree with the Romans that an act is not guilty, unless the intention is guilty (Actus non facit reum, nisi mens sit rea.)-Common law is more severe in this partic- 3 34 CRIMES AND PUNISHMENTS. 1 § 17. This proviso operates also in another direction: it serves the judiciary as a guide in passing judgment on aggravated transgressions. The court is not un- frequently embarrassed, when called upon to decide cases of uninterrupted and repeated violations of any one law, whether the culprit is guilty of one continued offense (delictum continuatum), or of several offenses of the same kind (delictum reiteratum). Of course, in capital crimes, the problem meets with a very easy so- lution: the criminal can not be killed more than once, even for different crimes,-only when he has been duly convicted of two or more offenses, all subject to capital punishment, but to different modes of death, the Talmud ordains that he shall suffer the hardest death,58 or the one mentioned in the warning.59 But in cases subject to corporal punishment only, the ques- tion is very important, and the answer depends on the number of warnings.60 ular. Thus while it requires, that "the killing should be com- mitted with malice aforethought, to make it the crime of mur- der," it declares it sufficient if the malice was implied only (Blackstone IV, 199 sq. Cf. infra § 43). 5s Sanh. 81a; Maimon. H. Sanh. XIV, 4. Cf. infra n. 378. 59 Cf. Sanh. 81: Maimon. H. Sanh. XIV, 4. 60 Thus: The Nazarite, who drinks a certain measure of wine in violation of his vow of abstinence, is, by Talmudic law, sub- ject to flagellation (Nazir 34, Maimon. H. Nezirath V, 2). The question now arises whether, if he imbibes this quantity several times in succession, he is to be punished for so many separate and distinct transgressions, or only once for all. The warning decides it. If before each drink he is duly warned not to indulge, he is legally liable to the prescribed punishment for each drink separately; but when no warning is administered PROVISOS. 35 § 18. Also another and more important decision de- pends on the due administration of the warning, name- ly that concerning transgressions rendering the per- petrator liable at once to corporal and to capital pun- ishment. In such cases, when the warning mentioned the corporal penalty, only this penalty is awarded; but when it mentioned the death penalty, the culprit is put to death; without being flagellated. The latter, however, is the case also when the warning mentions both punishments; for Rabbinic law does not impose corporal and capital punishments, to which one makes himself liable by the commission of one and the same crime; 62 it inflicts the greater only." 63 61 between drinks, he is punished once only (Maccoth 21ª, Nazir 42b). 61 Hullin 81b; Maimon. H. Sanh. XVI, 5.—Thus, for the vio- lation of the Biblical precept regarding the slaughtering of an animal and its offspring within one day (Lev. XXII, 28), the legal punishment is flagellation (Hullin 782; Maimon. H. She- hitta XII, 1). Now, when one violates this prohibition, and adds thereto the deadly sin of sacrificing the victims to a pagan deity, he is liable to suffer also the death of the idolater (see § 26); but as only one punishment can legally be awarded, the warning decides which it shall be. 62 Sanh. 74ª, et al.-Nor does the Talmud impose pecuniary fine and corporal punishment for one and the same offense (Tosefta ib. IV; Maccoth 13). However, in an action for slan- dering a newly married woman, the convict is both fined and flagellated (Tosefta ib. I, § 5; Kethub. 45; Maimon. H. Naara III, 1). But slander is exceptional in another direction also. For, while no violation of a negative precept, unaccompanied by physical action, is punishable corporally (supra § 12), the slan- derer is flagellated: he is considered to have traduced not only the woman against whom his tongue is directly levelled, but all 36 CRIMES AND PUNISHMENTS. 64 § 19. From the benefit of the proviso under consid- eration, the Talmud expressly excludes the crimes of bearing false witness and inciting to idolatry, 65—the first, because the nature of the crime admits of no fore- warning, no person knowing beforehand that the wit- ness will testify to a falsehood; and the second, on account of the heinousness of the crime in a theocratic government. 66 Also the burglar is excluded from its operation;67 and so are all the perpetrators of those misdeeds, for the commission of which the Bible pre- dicts the penalty of excision. 68 the maidens in Israel (Sifre II, § 238; Yer. Terumoth VII, § 1, p. 44). 63 Kethuboth 33b sq.; Maimon. II. Geneba III, 1.-The legal maxim being: "The less punishment is discharged in the greater" (Hullin 81; et al.). Among the Romans, too, it was a rule of law that a fine should not be imposed with another punishment in the same rogatio, decree or bill (Smith 522¹). Cf. infra §31. 64 Maccoth 4b; Maimon. H. Eduth XVIII, 4. Sanh. 67a; Maimon. H. Ab. Zara V, 3; ib. Cf. supra n. 37. II. Sanh. XI, 5. 66 Cf. infra n. 89. 67 Kethuboth 34b; Sanh. 72b. "The act of breaking in is in it- self sufficient warning." 68 Maccoth 13b; Kerith. 2ª sq. Cf. infra n. 71.-On close exami- nation into the spirit of Talmudic jurisprudence, one cannot help perceiving that the Rabbis aimed at the ultimate abolition of capital punishment. Some expressed themselves plainly to this effect (supra § 6); and nothing could accomplish that end better than the proviso of the antecedent warning. To abolish capital punishment suddenly and altogether, they did not deem practicable, as the princely contemporary of the abolitionists referred to remarked with reference to them: They would increase bloodshed in the world" (Maccoth 7a), for they would remove the greatest deterrent from crime; they, therefore, 66 MISDEMEANORS, CRIMES AND PENALTIES. 37 3. MISDEMEANORS, CRIMES AND PENALTIES. § 20. The philosophic maxim, that it is absurd and impolitic to apply the same punishment to crimes of instituted a condition that would render a judicial execution highly improbable, and yet not altogether impossible. Still it must not be assumed that, barring the exceptions enumerated, all legal convictions were conditioned by strict compliance with this proviso. It is true that, from the oft-repeated dicta of the Talmud (cf. Tosefta Sanh. XI, § 1; Sanh. 80), such would appear to be the case; but this would be subversive of all principles of law and order. Was the murderer acquitted, because he had not been duly forewarned? The Talmud, in strict accord with the laws of our own days, not only justifies the killing of the would- be murderer, but makes it everybody's duty to do so, if possi- ble (cf. infra § 34), in order to prevent him from carrying out his criminal purpose; and if there are people near enough to administer a warning, would they not rather interfere and pre- vent the crime, than merely forewarn the criminal and stand by while the crime is being committed? The probability, therefore, is that only such crimes and trespasses are conditioned by the warning, as are liable to be committed in ignorance of their criminal nature; e. g. a profanation of the Sabbath, or eating on Atonement Day, whose holy character had possibly been forgotten: the Sabbath might be mistaken for a week day, and the day of Atonement for an ordinary day. In such cases one must be duly warned of the sanctity of the day and of the consequences of presumptuously violating it (supra n. 55); and if, in spite of the warning, the trespasser persists, he becomes the subject of punishment (cf. Finneles, Darcah shel Torah, §115). Such, we conceive, is the rationale of the requirement; but since all Rabbinic jurisprudence, Talmudic and contempora- neous as well as that of later date, yields the benefit of the warn- ing to all cases, except those explicitly mentioned, we are bound to follow it in these pages, and we suggest the following as the principle underlying the curious proviso.-Society is founded 38 CRIMES AND PUNISHMENTS. different malignity, which the great commentator 69 on a compact guaranteeing mutual protection: "that the whole should protect all its parts, and that every part should pay obe- dience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that, in return for this protection, each individual should submit to the laws of the community" (Blackstone I, 48. Cmp. Grotius, Right of War and Peace, B. III c. XXIII; Beccaria, § 21). This compact is generally understood or implied, though seldom written. Israel's compact is the Pentateuch, "the Book of the Covenant." Now, as long as one acts up to society's compact or constitution, so long is he a member of society, and entitled to all the rights and privileges it confers upon its adherents; but when he flagrantly and presumptuously violates the requirements of the fundamental principles of the constitu- tion, he ceases to be a member of society: the compact be- tween him and the fraternity is broken by his own volition, and he has no more claim to the protection which its expressed, or implied, provisions formerly conferred on him. Still this would not authorize society to do him harm. But when the warning is duly administered and he acknowledges it, he delivers him- self up to punishment (Sanh. 40b; supra § 16), virtually offering to suffer corporal or capital punishment in exchange for the gratification of his passion. Or, when, by his determination to break the compact, and thus to throw up his membership and become a stranger to society, he is duly warned by members of society that, in case he should defy the provisions of their compact, they would look upon him as upon a dangerous for- eign invader, whose just reward is provided for; and when, in spite of the warning, he defies the law and offends the provisions of the compact, the government considers him a traitor, and justly treats him as such. When, however, the condition is not strictly complied with, the Rabbis do not consider themselves justified in inflicting bodily pain, and much less death, but pro- vide other punishments (cf. infra, § 24). Co Blackstone IV, 17. Cf. Luzzatto ad Exodus XXI, 37.— Montaigne says: "Vices are all alike as they are vices, and 'tis MISDEMEANORS, CRIMES AND PENALTIES. 39 so ably and justly advocated only one century ago, was early recognized and acted upon in Talmudic juris- prudence. Not only is there in the Rabbinic law a well drawn scale of crimes and punishments-the latter ranging between flagellation and death,—but in the mode of capital punishment itself, as will appear here- after,70 there is a gradation commensurate with the magnitude of the crime. At this juncture we will take a general view of the various misdemeanors and crimes, and of their consequent penalties, beginning with the lightest. § 21. Flagellation is the penalty of three classes of offenses: 1. The violation of any one of the prohibi- tive ordinances punishable, according to the Mosaic law, with excision," to which, however, no capital thus, perhaps, the Stoics understood it; but though they are equally vices, yet they are not equal vices; and that he who has transgressed the bounds by a hundred paces, whence we cannot deviate without going wrong, should not be in a worse condition than he who has transgressed them but ten, is not to be believed; or that sacrilege is not worse than stealing a cab- bage" (Essays, B. II, c. II). And since it is naturally essen- tial that a great crime should be prevented rather than a lesser one, and that which is more pernicious to society, rather than that which is less so: it is also essential that there should be a certain correspondence in the punishments, the means employed. to prevent the occurrence of crime (cf. Montesquieu, B. VI, c. XVI; Beccaria, § 6). 70 Cf. infra §§ 122-139. 71 What one is to understand by this term does not clearly appear. In the Mosaic law we frequently meet with the expres- sion: 66* * * and that being shall be cut off from the midst of its people," without being accompanied by any directions as to how this is to come about. Some modern exegetists assert 40 CRIMES AND PUNISHMENTS. punishment at the instance of a human tribunal is attached.72 2. The violation of a negative precept, deadly in the sight of heaven.73 3. The violation of any negative precept, when accomplished by means of a positive act.7¹ that the law-giver thereby implied capital punishment (cf. Gese- nius, Thesaurus, p. 718); but one is loath to admit that Moses awarded the death penalty for transgressions affecting ceremo- nial rites only (e. g. Ex. XII, 15; XXX, 38. Lev. VII, 20. Num. IX, 13. Where the death penalty was intended, he une- quivocally expressed it; as with reference to the Sabbath- Ex. XXXI, 14). Jewish commentators generally understood by it something not depending on human instrumentality. Basing their opinion on tradition, they assert that excision is only a heavenly visitation of early death (cf. Iben Ezra ad Gen. XVII, 14; Abravanel ad Num. XV; Luzzatto ad Gen. XVII, 14); and this opinion seems to have scriptural authority for its foundation (cf. Lev. XX, 5-6; Ezek. XIV, 8). If so, then there is no difference between this penalty and that of the next class (cf. Munk, Palestine 438). 72 Maccoth 13; Maimon. H. Sanh. XVIII, 1. 73 Sanh. 83°; Maimon. ib. XIX, 2. 74 Maimon. ib. XIX, 2 and sources. Cf. infra n. 323.-The enu_ meration of the different offenses comprised under this section would be too tedious, and useless to both the reader and the com- piler. Suffice it therefore to state, that Maimonides who has, in 1. c., carefully arranged and numbered them, furnishes a grand total of two hundred and seven. The first class includes twenty- one offenses, seven of which are of the nature of sexual corres- pondence, not coming under the head of capital crimes (cf. § 26 sq.), and the rest are mostly violations of Levitical laws. The second class comprises abuses of Levitical functions and privi_ leges to the number of eighteen. The third and last class, com- prising the remaining one hundred and forty-eight, are offenses of various kinds: such as against the temple, against agrarian laws, against the dietary laws. The greater part of each class - MISDEMEANORS, CRIMES AND PENALTIES. 41 § 22. Penal servitude is the punishment of the per- son duly convicted of theft, and unable to make the prescribed restitution.75 § 23. Exile is the penalty of accidental homicide." S was applicable to the period during which the sacrificial rites obtained in Israel.-Less formal than flagellation (cf. infra § 138 sq.), but akin to it, is the punishment known as whipping for insubordination (Mackath Marduth). This was administered to all refractory persons as well as to the immodest (Kiddushin 12º; Maimon. H. Sanh. XVIII, 5). 75 Exodus XXII, 3; Mekhilta Nezikin § 1; ib. § 13; Kidd, 18b. This is the only case where the Mosaic-Talmudic law imposes servitude on a Hebrew, and it is a kind of retaliation on the culprit who attempted to enrich himself and to establish his independence by means of the property of others (cf. Maimon. H. Geneba I, 4; More Neb. III, 41; Beccaria § 22).-Herod ordered all thieves to be exposed and sold to foreigners; but this was against the express law of Moses (Josephus, Antiqu. XVI, I, 1; infra n. 412). Among the early Romans a convic- tion of theft affected the civil status of the thief. When the stolen thing was found in his possession (furtum manifestum), a freeman duly convicted was flogged and consigned to the injured party. This punishment was subsequently changed to a quad- ruple fine, both in the case of a slave and a freeman. The pen- alty for theft when the stolen thing was not found in the thief's possession, was a twofold fine (Smith 463). Among the Athenians, Draco made theft capital, but Solon changed the penalty to a pecuniary mulct. The ancient Saxon law nomi- nally punished theft with death, if the stolen thing was valued above twelve-pence, which theft was denominated grand larceny; but the criminal was permitted to redeem his life by a pecuniary In the reign of Henry I, the power of redemption was taken away, and all persons guilty of grand larceny were directed to be hanged (Blackstone IV, 237 sq.). ransom. 76 Although this is the correct rendition of the term Golah, under which the penalty is known, in Talmudic jurisprudence 42 CRIMES AND PUNISHMENTS. This punishment, however, is not imposed on the unfortunate culprit, unless the victim of the acci-