But the most thoroughgoing modification of the system of capital
punishment was not brought about through change in the methods of
imposing the death penalty, but through surrounding the accused with
so many legal safeguards that it became virtually impossible ever to
impose a death sentence.
The law limited the right of trying capital cases to the high tribunal
of twenty-three, not even the king having the right to put to death
other than through the Sanhedrin.[128] According to Rabbinical
tradition, one very large class of capital cases was taken out of
the jurisdiction of any human court, namely those in which the Bible
stipulates _Kareth_ or Excision as the punishment. This ruling at one
stroke absolved the Rabbinical courts from the obligation of imposing
the death sentence in a large number of cases.
In many passages in the Pentateuch it is stated that the one committing
certain transgressions “will be cut off from his kinsfolk.”[129]
Modern Biblical scholars understand the phrase as referring to the
imposition of the death penalty by the court. The Karaites also
understood _Kareth_ in this sense, through a comparison of Exod. xxxi,
14b with the parallel passages xxxi, 14a, 15 and Num. xv, 35. The
one passage prescribes _Kareth_, the others prescribe death as the
punishment for Sabbath profanation. Similarly _Kareth_ in Lev. xx, 3 is
the equivalent of stoning, the punishment designated in the preceding
verse for Moloch worship; and _Kareth_ for blasphemy in Num. xv, 30
is the equivalent of stoning mentioned as the punishment for the same
crime in Lev. xxiv, 14. The fate of Achan,[130] of Naboth,[131] and of
the adulteress,[132] would seem to show that the whole family of the
convicted person could judicially be put to death. In some cases,[133]
the death penalty is specified as well as the penalty of _Kareth_.
None the less, the Rabbis consistently understand _Kareth_ to be not
a death penalty inflicted by man but a punishment left in the hands
of Heaven. Thus the Rabbis interpret _Kareth_ specifically as dying
childless,[134] or as dying at 50 years, or, according to Raba, between
50 and 60 years, before completing the otherwise destined span,[135]
or as the cutting off of the soul in the future life.[136] For this
interpretation of _Kareth_ as a punishment by Heaven would speak the
personal pronoun in the phrase, “_I_ will cut off,” the active form
sometimes used.[137] For this would also speak the passages wherein
the death penalty is threatened as well as _Kareth_, usually adduced
as favoring the other interpretation of _Kareth_, if we understand
them, as we well may, as threatening an alternative, _either_ the
death penalty by the court _or Kareth_ by God. That this may be the
meaning is clear from a careful reading of Lev. x, 1-5, wherein the
Moloch worshipper is threatened with death by stoning at the hands of
the people, or if the people do not so punish him, then God will cut
him off. Such phrases as “they shall bear their sin,”[138] or “they
shall bear their sin and shall die childless,”[139] or “they shall die
childless,”[140] would also be most naturally understood as taking
the right of punishment away from the human court and leaving it to
Heaven. It has been suggested that the Niqtal form, usually translated
as passive “and shall be cut off,” should be understood in a reflexive
sense, “(that soul) cuts itself off.” But this explanation seems
unlikely in face of the occurrence of the active forms “I will cut off”
or “and I will destroy that soul from the midst of its people.”[137]
Whatever be the preferable explanation of _Kareth_ in each passage in
which the term occurs, the interpretation consistently given to it by
the Rabbis is highly significant. Their tendency away from capital
punishment is clearly seen in their leaving to the heavenly tribunal
the punishment in all cases where _Kareth_ is prescribed in the
Bible.[141]
The other restrictions in court procedure are too well known to need
setting forth here in detail. It is enough to mention some of the rules
of evidence, particularly the minute safeguards with which the giving
of testimony was surrounded. Torturing of witnesses to extract from
them convicting evidence was entirely unknown. The aim of the court was
to lead the witnesses into giving evidence favorable to the accused,
not to coerce them into helping condemn him. According to R. Jose b.
Jehudah, a witness could testify only in favor of the accused.[142] The
two witnesses had to be free adult men,[143] sound in mind and body,
of unquestioned integrity,[144] and free of all suspicion of personal
relationship to the defendant[145] or interest in the case.[146] They
were first solemnly warned and adjured as to the blood responsibility
resting on them and their heirs after them.[147] They were then
cross-examined separately,[148] very searchingly,[149] with the
_haqira_ affecting place,[150] time, the warning, etc., and with the
_bediqa_ going into the smaller details.[151] A slight contradiction or
discrepancy in their evidence invalidated their testimony.[152] They
had to prove the act, and, what was far more difficult, prove also the
intention. In order to be able to prove deliberate and understanding
premeditation, the witnesses must both have warned the accused before
he committed the crime,[153] with a clear warning (_Hathraa_),
including a definite reference to the kind of punishment and the
measure of punishment which his act would involve.[154] The warning
given by them had to have been so clearly understood, that the accused
had replied that he would commit the crime none the less, thereby
showing that he had fully understood the warning.[155] The act must
have followed closely on their warning, or the warning by the witnesses
was not considered adequate, on the ground that in the intervening time
it may have escaped the culprit’s memory.[156] If there was a technical
flaw in the giving of this warning by the witnesses, the accused was
given the benefit of the doubt that there had not been _dolus_ but
only _culpa_,[157] and where the crime was not premeditated, no death
penalty could be imposed.[158]
Further, circumstantial or presumptive evidence was disallowed. The
witnesses had to have seen each other when the act was committed,[159]
and had to have seen the act itself, and not only what went before
it or what followed it. For instance, even in early Rabbinic days,
Simon ben Shetach (fl. 80 B. C. E.), who undoubtedly believed in and
imposed the death sentence during his lifetime,[160] did not consider
the strongest circumstantial evidence as evidence. It is related[161]
that he once saw one man pursuing another. He followed them and found
the pursued man murdered and the pursuer holding a sword dripping with
blood. Simon said to the murderer: ‘Either you or I killed this man.
But what can I do? Your blood guilt is not delivered into my hands;
for the Torah says[162] that you can be condemned only by the actual
testimony of two or more witnesses. May God who knows the inward
thoughts requite the one who committed this murder.’[163]
In these and in similar ways, tradition developed the rules contained
in the Torah, that two witnesses were needed and that the witnesses
themselves had to carry out the death sentence. As the number of
necessary conditions increased, it became virtually impossible in
a capital case to obtain unassailable testimony adequate for a
condemnation.
Many other legal refinements made it still more certain that no one
would ever be legally condemned to death. For example, murder was not
punishable by death, as we have seen, if it could be proved to have
been not fully premeditated or intentional. Thus, if the murderer had
meant to kill one man and had killed another; or had he meant to wound
him on the thigh and instead had struck him on the heart and killed
him, capital punishment could not be meted out, since the criminal
intent to kill was not present.[164] Again, if the murderer were
weak-minded, or intoxicated, or a deaf-mute, or a minor, or acting
under compulsion or acting in self defence,[165] etc., he could not be
condemned to death. Or again, if the man murdered had been fatally ill
or for any other reason would not have lived had he not been murdered,
the guilty man was not considered liable to the death penalty. And even
if the murderer was suffering from an illness that in the ordinary
course would shortly kill him, the court would not anticipate God’s
decree by carrying out the death penalty.
But over and above these thick protecting hedges which made it
virtually impossible to obtain a death sentence, there were many other
considerations which further removed the possibility of executing
a capital sentence. Thus there was a thoroughgoing rule that no
punishment affecting the personality of a man[166] might be imposed on
a deduction a fortiori.[167] Unless there was explicit Biblical warrant
for the death penalty, it was prohibited to deduce this penalty by
rules of interpretation, a principle in itself that worked consistently
towards moderating the severity of the written law.
Moreover, just as the power of the witnesses was minimized and the
rights and privileges of the defendant were magnified, so also the
rights and privileges of the judges were hemmed in and restrained
in every way. Only a high court of twenty-three could try capital
cases.[168] The judges all had to be picked men of high standing,
character and attainments.[169] They were impressed with the words
of their own warning to the witnesses, that he who causes a soul to
be put to death unjustly is as though he had destroyed the whole
world.[170] When engaged on a capital trial, they were put under
severe discipline.[171] They took the place both of the counsel for
the defendant and of the jury.[172] Two death penalties could not
be pronounced on one day.[173] For final condemnation, a second
ballot had to be taken on the following day.[174] If twelve of the
twenty-three judges were in favor of acquittal against the other
eleven, the defendant was freed by the majority of one. But if twelve
held him guilty and eleven held him innocent, the defendant could not
be condemned by the majority of one. A majority of at least two was
necessary for a condemnation.[175] A judge was not permitted to change
his mind and declare his decision for a condemnation when once he had
voted for an acquittal.[176] Unless each judge could give an individual
reason for his opinion his vote was not counted.[177] According to the
striking opinion of Rab Kahana, if the judges were unanimously in favor
of _conviction_, the accused should be freed.[178] In general, it was
held to be better that the guilty should escape punishment than that
one innocent man be put to death. The judges had the less hesitancy
in inclining to mercy, because of the belief that God would not allow
the guilty to remain unrequited.[179] In the story of circumstantial
evidence quoted above, Simon ben Shetach left the punishment of the
murderer to God. When the Jewish courts no longer had jurisdiction,
it was felt that God would fittingly punish those who had rendered
themselves legally liable to the death penalty.[180] The Mechilta,
elaborating the Biblical words “For I, God, will not let the guilty go
free,”[181] says, that if one who is guilty has been discharged by the
court as not guilty, he is not to be taken back for a retrial. God has
instruments and means enough to bring upon him the punishment that he
has incurred.
After an acquittal there could be no appeal; but after a conviction
an appeal could be lodged at any time.[182] If one ultimately was
condemned, he was given every facility to escape his fate through
the publicity of a herald’s proclamation,[183] through the assiduous
attempt to elicit new favorable evidence even during the procession to
the place of execution,[184] etc.
Examples of legal safeguards could readily be multiplied. But it is
sufficient for our present purpose to sum up these details by saying
that the publicity of the trial, the confrontation of the defendant
and the plaintiff, the absence of torture, the careful elimination of
improper witnesses, the solemn warning to the witnesses, the searching
examination of the witnesses, the remarkable requirements for a valid
warning, the extraordinarily high standard as to what constituted
evidence, the equally extraordinary number of loopholes allowed to the
defendant, the limitations on the court, forbidding it to deduce a
capital punishment if the Bible did not explicitly call for one, the
immediate acquittal by any majority of the judges, the postponement of
the final decision if a majority were in favor of death, the obligation
on those who had voted against the death penalty of keeping their
vote unchanged at the second ballot, together with the permission to
change their opinion granted those who had voted in favor of the death
penalty, the right of the judges after a condemnation to change their
opinion any time before the execution, the constant public appeal
for further evidence until the final execution, the prohibition of
more than one capital sentence being pronounced in one day, and other
innumerable elements of legal interpretation and procedure, all worked
to make legal capital punishment impossible of practical application.