The Four Methods of Capital Punishment

According to a saying of the Rabbis, nine hundred and three different

methods of death have been created for man.[1] But Rabbinic

jurisprudence recognised only four legal methods of inflicting death as

the penalty for a capital crime, namely: stoning, burning, decapitation

and strangulation.[2] One man, Yakim (or Yakom), a nephew of Jose ben

Joezer (2nd cent. B. C. E.), is said to have killed himself by all four

methods at once. He first set up a beam from which he hung a noose.

Then he arranged faggots at the foot of the gibbet, surrounded them

with stones and set a sword with its blade pointing upwards in the

stones. He then kindled the faggots and hanged himself in the noose,

the flames burned away the rope so that his body fell into the fire,

and at the same time on to the stones and on the sword-blade.[3]

(a) _Stoning_

In appraising the Jewish attitude towards capital punishment in

general, it is necessary first to examine the history of these four

methods of capital punishment among the Jews.[4] The first to engage

our attention is STONING (_Sekilah_).

In Biblical and Rabbinic legislation, stoning is the punishment decreed

for a number of transgressions, such as idolatry, Moloch worship,

magic, necromancy, false prophesying, Sabbath desecration, blasphemy

of God’s Name, cursing of parent, and other crimes, seventeen in all,

listed in the Mishna.[5]

Stoning was apparently the usual method of inflicting the death penalty

in Biblical times whenever burning was not specifically called for.[6]

It was carried out outside the camp or town or at the gate,[7] by the

people or mob, without any other ceremony[8] than the casting of the

first stone by the witnesses.[9]

In post-Biblical times, we find that according to John x, 31, “the

Jews took up stones again to stone” Jesus. According to Acts vii, 57f,

Stephen, the protomartyr of the Church, was stoned, but whether by the

uprising of the mob or by judgment of the court, is not clear.[10]

According to Luke xx, 6, the chief priests and the scribes and elders

feared to suggest that John the Baptist was not a prophet, because

if they did so “all the people will stone us.” In a passage which is

admittedly a Christian interpolation in Josephus, we are told that

the Sadducean high priest Anan (62 C. E.) removed James, the brother

of Jesus, and some others by stoning, after a semblance of a legal

trial.[11]

In the Rabbinic literature also, there are incidental references to

actual cases of stoning, which may seem to imply that in the earliest

Rabbinic period lapidation was carried out in the simple manner

described in the Bible. In the Mishna,[12] it is stated that a priest

who ministered in the Temple in a state of ritual impurity was beaten

on the skull by the young priests, with blocks of wood.[13] In early

Rabbinic times, the death penalty by stoning was undoubtedly carried

out. Rabbi Eleazar ben Jacob (1st cent. C. E.) states that as an

exemplary measure, the Jewish court (_Beth Din_) in Grecian days,

imposed the sentence of stoning on one who rode on horseback on the

Sabbath.[14] Tosefta Sanhedrin ix, 5, mentions a definite case of a man

going out to be stoned. Tradition states further that Ben Satda, later

wrongly identified with Jesus[15], was stoned.[16] The Beth Din in

Jerusalem is also said to have inflicted the death penalty by stoning

for a case of apparent incest and for another gross crime.[17] But

whether any of these cases of stoning was carried out in the Pharisaic

method of precipitation described in the Mishna Sanhedrin vi, 4, is not

clear from the sources.[18]

It may be asked what basis there was for the Pharisaic modification of

lapidation to precipitation. In a war with Edom, captive Edomites were

killed by being precipitated from a rock.[19] Two Jewish mothers who

had circumcised their children during the persecutions of Antiochus

Epiphanes are said to have been killed by being hurled from the wall of

the city.[20] The false witnesses who accused Susanna were similarly

dealt with.[21] The gospel according to Luke relates that the people

of Nazareth wished to cast Jesus headlong from the brow of the hill

whereon their city was built.[22] Precipitation was therefore a well

recognised modification of lapidation, and not a sheer invention of the

Rabbis.

A similar modification was very early introduced in the treatment

accorded to the scapegoat. Instead of the scapegoat being sent forth

into the wilderness, as the Bible describes,[23] it was in practise

precipitated from a rock. Similarly, the Pharisaic tradition early

substituted precipitation for stoning in the case of human punishment.

According to a convincing emendation of a Talmudic text suggested by L.

Ginzberg,[24] precipitation had taken the place of lapidation at least

as early as the time of R. Jochanan ben Zaccai, (fl. 75 C. E.).

The Rabbis held lapidation to be the most severe of the four death

penalties, and precipitation was regarded as a humane modification of

it. The Mishna states that the victim was thrown from twice a man’s

height, i. e., about 11 feet. But if you wish to ensure a certain and

easy death, asks the Talmud, why not cast him from a greater height?

The answer is given because that would lacerate the body.[25] The words

“his blood shall be on him”[26] were taken as implying that he shall

be so killed that the blood shall remain _in_ him. The change in method

advocated by the Pharisees therefore seems to have had for its purpose

the desire to make the death more humane, certain and speedy, and to

preserve the body so far as possible from being mangled. The custom

of giving to the one condemned a wine compounded with myrrh to dull

the senses,[27] would be another expression of this desire to rob the

punishment of its horror and pain.

(b) _Burning_

The second death penalty, that of BURNING (_Serefah_), is prescribed

by the Biblical law for a priest’s daughter who commits adultery, and

for the crime of incest with mother and daughter.[28] The house of the

guilty may also have been burnt.[29] There is no reason to doubt that

this punishment in Biblical times involved the actual burning of the

living victim.[30]

In post-Biblical times, we find that on March 13, 4 B. C. E., Herod

burnt alive Matthias and his companions who had pulled down the golden

eagle set up over the gate of the Temple.[31] But this was the act of

a despotic monarch and not of a court of law. Josephus reports about

himself that the Galilean mob regarded him as a traitor, and some

cried out to stone the traitor and others to burn him.[32] This also

would have been the act of a passionate populace in wartime, and not

a legally imposed punishment. But there is one well attested instance

in early Rabbinic times of an actual burning by decree of a court of

law. This was reported by Rabbi Eleazar ben Zadok (fl. c. 100 C. E.),

who said that as a young child he had seen the adulterous daughter of

a priest bound around with vine branches and burnt.[33] His fellow

Rabbis, representing the Pharisaic tradition, declared that such a

course of action involving a literal burning, could have been carried

out only by an unlearned court (Mishna), or, according to R. Joseph, by

a Sadducean court.[34] The Book of Jubilees, which is also Sadducean

in its Halacha, prescribes burning for the marriage of a Jewess with a

non-Jew, for adultery and incest.[35]

But the Pharisaic tradition, as is well known, mitigated the severity

of the punishment by changing it into strangulation followed by a

slight, almost symbolic burning of the throat and inward parts.[36] The

reasons for the change of method are apparently the same as in the case

of stoning, first, the desire to rob the death of its pain[37], and

secondly, to avoid marring the body.

This latter reason is emphasized in the statement of Rab Mathna in

the Talmud[38], that the modification in the method was approved so

that the breath of life should be burnt out and the body preserved, as

was supposed to have been the case with the sons of Korah.[39] Rabbi

Eleazar adduces the same reason, referring to the case of the sons of

Aaron.[40] The Tannaitic tradition held that Nadab and Abihu met their

death through two narrow tongues of flame coming forth from the holy of

holies, each dividing into two and entering into the nostrils of the

two men, thus burning out the breath of life and leaving their clothes

and their bodies uninjured.[41] Similarly, the Syriac Apocalypse of

Baruch says that Sennacherib’s army was burnt by God only within

their bodies.[42] This statement reflects the Midrashic tradition

that because Shem covered his father’s nakedness, the clothing of his

Jewish descendants Nadab and Abihu, and of his non-Jewish descendants

composing Sennacherib’s army, was not burnt when the fire of the Lord

burnt out their lives.[43]

In all this is emphasized the Pharisaic desire to preserve the body

of the victim uninjured. According to R. Joseph, who declared that a

court which sentenced to an actual burning must have been a Sadducean

court,[44] this consideration was not of weight with the Sadducees. It

has been suggested therefore, that this desire of the Pharisees may

have been connected with their belief in the resurrection of the body,

a belief rejected by the Sadducees.[45]

The method of burning advocated by the Pharisees does not seem to go

back beyond the Christian era. The incident of the actual burning of

the priest’s daughter, witnessed by Rabbi Eleazar ben Zadok shortly

before the fall of the Temple, might be interpreted as implying that

the change in method was then taking place.[46] There is no mention in

the sources of a case of burning being carried out in the Pharisaic

manner, although the full details preserved in the Mishna, describing

the application of the method, would imply that the method had been in

use. But the number of cases of the possible application of the penalty

was limited, and a burning must have been a rare occurrence.

(c) _Beheading_

The third legal capital punishment recognised by the Rabbis is

BEHEADING (_Hereg_). Death by the sword, although recognized in a

blood feud and often used by kings,[47] is nowhere mentioned in the

Bible as a penalty ordered by law, except for the apostasy of a whole

community.[48] According to the Mishna,[49] murder also is punished

by beheading. The Boethusians,[50] the Samaritans,[51] Philo,[52]

Jesus,[53] Josephus,[54] the Book of Jubilees,[55] Eliezer ben

Hyrcanus, (1st cent. C. E.),[56] like the later Karaites,[57] all agree

in recognizing the Biblical talio as the punishment for murder. This

does not necessarily imply that the _method_ of inflicting the death

penalty had to be the same as the method used by the murderer. It

implies only that murder was punishable by death.

The Pharisaic ruling that the death penalty for murder was inflicted by

decapitation is not disputed by any of the Rabbis.[58] But the method

of the execution is debated. The Mishna states that the victim’s head

was cut off at the throat with a sword, as the (Roman) government

carried out an execution.[59] R. Jehudah (135-220 C. E.) objected

that this _jus gladii_ would disfigure the victim.[60] He therefore

advocated, that instead of the old method recognized by the Rabbinical

tradition, the murderer’s head should be placed on a block and chopped

off at the neck with an ax. The Rabbis protested that this method of

beheading advocated by R. Jehudah would be far more shameful to the

victim than that common to the Jews and the Romans. R. Jehudah admitted

the force of their objection, but defended the method advocated by him

because it was not the same as Roman custom. The Talmud then proceeds

to eliminate other possible methods of killing by the sword, such as

piercing or cleaving the body, by quoting the principle of the golden

rule “Thou shalt love thy neighbor as thyself.”[61] Therefore we must

choose for him the easiest death. The comparison is then brought with

the heifer that was killed to atone for bloodshed.[62] As the heifer,

the substitute for the unknown murderer, was killed by having its

throat cut, so the known human murderer had his throat cut and not his

head chopped off at the neck, the golden rule again being quoted as

authority.[63]

In this case also the sources do not mention an actual case of

decapitation being carried out by a Jewish court. According to the New

Testament, Herod Antipas had John the Baptist killed by beheading,[64]

and Agrippa I. caused James the apostle, the brother of John, to be

killed by the sword.[65] But neither of these executions was ordered

by a Jewish court of law.

(d) _Strangulation_

The fourth method of capital punishment recognised in Pharisaic

tradition is STRANGULATION (_Henek_).

Strangulation does not appear in the Bible as a recognised legal method

of punishment. The only Biblical instance of death by strangulation is

the suicide of Ahitophel.[66]

The Mishna[67] specifies strangulation as the punishment for the

son who purposely wounds his parent, for the false prophet, for the

one who prophesies in the name of idolatry, for stealing a Jew, for

adultery with a married woman, seducing a priest’s betrothed or married

daughter, etc. It was the method of capital punishment preferred by the

Rabbis; for R. Yoshia said that wherever the Bible does not specify

the method of carrying out the capital sentence, strangulation should

be adopted because it is the least severe measure. Rabbi Jonathan

also said that strangulation should be adopted, even though in his

judgment strangling is not an easier method of death than other

methods.[68] The reason for this preference seems to be because of the

four legally recognized methods of capital punishment, strangulation

as it was carried out was the only one which left the body practically

uninjured. The condemned man was to be sunk up to his knees in mud

and then strangled by having a hard cloth which was wrapped in a soft

one twisted around his neck and pulled in opposite directions until

the suffocated victim died.[69] Strangulation therefore satisfied the

Rabbinic desire to avoid marring the body far better than did stoning,

burning or decapitation. R. Jehudah explains that the death penalty as

inflicted by man should be like that inflicted by God in not injuring

the human body.[70] This consideration it was, also, as we have seen,

that played a large part in inducing the Rabbis to mitigate the method

of burning, by reducing it to strangulation followed by an almost

symbolical burning.

Again, in this case, the sources do not mention any definite case in

which the punishment of strangulation was actually carried out as a

result of a court judgment. But it is clear that strangulation induced

in the older manner of hanging was not infrequently consummated in

the earlier Rabbinic period. Raguel’s daughter Sarah “thought to

have hanged herself.”[71] A proverbial remark in the mouth of Rabbi

Akiba (d. c. 132 C. E.), ‘if you wish to strangle yourself, hang

yourself on a high tree’,[72] would indicate that hanging was a well

recognised method of death. According to one source, Judas Iscariot

hanged himself.[73] It is reported by Rabbi Eleazar,[74] that Simon

ben Shetach (fl. 80 B. C. E.) hanged women in Ascalon. But in this

case the question arises whether they were hanged alive or hanged as a

reproach after they had been otherwise killed.

Hanging, according to Biblical custom, was meted out to the _dead_

body of one who had been otherwise killed. The order of the words in

Deut. xxi, 22, 23 implies, that first the malefactor has been put to

death, and then as an added indignity his corpse is suspended. The

same treatment of hanging the corpse was meted out to the murderers

of Ishbosheth.[75] Similarly, Joseph tells the chief baker that in

three days Pharaoh will take off his head and then hang his dead

body.[76] The dead bodies of Saul and Jonathan were hung up by the

Philistines.[77] The five kings were first killed by Joshua and then

hanged.[78] A momentary hanging of the corpse was recognised by the

Rabbis in the case of the male idolator or blasphemer.[79] From these

examples of Jewish custom and from the context in the Mishna and

Talmuds, it becomes clear, that the witchcraft victims of Simon ben

Shetach’s zeal, were hanged in ignominy _after_ the death penalty had

been otherwise inflicted. In any case, the discussion in the Mishna

and the Talmud[80] shows that the action of Simon ben Shetach was

an exceptional action, from which no conclusion as to the regular

course of law could be drawn. There is consequently no evidence of

hanging alive ever having been carried out by a judicial sentence

of the Rabbis. It need scarcely be added that the Roman punishment

of crucifixion was a penalty unknown to Jewish law and abhorrent to

Jewish feeling. The inhuman savageness shown by Alexander Jannaeus in

crucifying his prisoners of war was no more a legally recognised form

of capital punishment than was his cutting the throats of the wives and

children before the eyes of the crucified victims.[81]

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