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]