In view of the fact that in pre-Christian and the earliest Rabbinic
times legal capital punishment was carried out, as has been shown
above, it becomes necessary to inquire when and why the practise of
capital punishment ceased among the Jewish people. In Biblical times,
and in post-Biblical times when the Sadducees controlled Jewish
life, the old death penalties were carried out without essential
modification. But under Roman rule, a change took place. Schürer
claims[185] that from the very beginning of the Roman dominion the
Jewish courts lost their competence to judge capital cases. According
to the gospel according to John, Pilate is made to say to the Jews,
“Take Jesus yourselves and judge him according to your law. The Jews
said unto him, ‘It is not lawful for us to put any man to death.’”[186]
Talmudic sources state that forty years prior to the destruction of
the Temple, i. e., 30 C. E., the right of deciding capital cases
was taken from the Jewish courts.[187] But Rab Joseph, R. Hiyya and
the school of Hezekiah taught, that this right was taken away from
the Jews by the Roman government, from the time that the Temple was
destroyed, i. e., 70 C. E.; adding, that the Sanhedrin abolished the
practise though not the theory of the four death penalties.[188] Of
these two dates given by the Rabbis, the second is apparently correct.
The earlier date, 30 B. C. E., probably arose from a misunderstanding.
The original statement made by R. Ishmael b. Jose, (end of the second
century), was that forty years before the destruction of the Temple,
the Sanhedrin moved from the Temple and held its sessions in a shop.
There is no reason to doubt this statement, Schürer notwithstanding.
But R. Isaac bar Abdimi added to it: “This implies that they no longer
judged capital cases.” This second statement is seemingly not an
historical tradition, but only an inference drawn on the theory that
capital sentence could be pronounced only in the special hall of the
Sanhedrin in the Temple. This inference is disproved by a number of
historical facts, which show that the Rabbinical courts had competence
in capital cases in Roman times until the destruction of the Temple and
of the Jewish State in 70 C. E. Josephus mentions the reluctance of the
Pharisees to impose the death penalty, contrasting them in this regard
with the Sadducees.[189] He states further that when a Sadducee became
a judge, he would adopt Pharisaic norms of judgment, because the public
would not otherwise tolerate him.[190] Elsewhere[191] he mentions that
the Essenes punish blasphemy by death. These three notices, although
not necessarily referring to post-Christian times, are significant when
taken in connection with the following facts. Up to the time of the
destruction of the Temple, the Romans granted to the Jews the right to
put to death any foreigner, even a Roman citizen, who passed beyond the
Temple limits,[192] and there is no warrant for Schürer’s supposition
that this right could be exercised only after obtaining the sanction
of the procurator.[193] Certainly under King Agrippa, 41-44 C. E.,
this Jewish law of capital punishment was in force.[194] The story of
the trial of Stephen[195] and the different accounts of the trials of
Paul before the Sanhedrin,[196] although they are often untrustworthy,
presuppose the competence of the Sanhedrin to judge capital cases at
a period later than the year 30 C. E. Anan, the Sadducean high priest
for three months in 62 C. E., is said by Josephus to have imposed and
carried out the death penalty.[197] Rabbi Eleazar ben Zadok cannot have
seen the burning of the high priest’s daughter[198] prior to 40 C. E.,
since in the year 70 C. E. he was still a young man.
There seems therefore to be no valid reason for doubting the statement
of R. Joseph, R. Hiyya and the school of Hezekiah, that the Roman
government allowed the Jewish courts a measure of jurisdiction in
capital cases up to the time of the destruction of the Temple in 70
C. E.,[199] but that after that date the Jewish courts were no longer
allowed this jurisdiction. Origen (d. 254 C. E.) says that the Jewish
law can no longer punish the murderer or stone the adulteress because
the Roman government has assumed these rights.[200] The Didascalia[201]
also remarks, that the Jewish law of capital punishment is no longer in
force. The Talmud testifies uniformly that the Jewish courts had no
power over life and death after the year 70 C. E.
But there are some minor exceptions to this that must be noted.
(i) A certain R. Hama b. Tobiyah caused Imarta, daughter of the
priest Tali, to be burnt. But his action was condemned, both because
the sentence had been carried out in the barbarous non-Pharisaic
method that R. Eleazar ben Zadok had seen in his youth,[202] and
because a capital sentence had been imposed after the destruction of
the Temple.[203] (ii) On one occasion a certain Tamar was condemned
(although not to capital punishment) by Rab Ammi, Rab Assi and Rab
Hiyya b. Abba in Tiberias (c. 300 C. E.). She complained to the
Roman proconsul in Caesarea of this usurpation of the Roman right of
judgment, and the influential intervention of Abbahu was required to
protect the Rabbinical judges.[204] (iii) On another occasion, Rab
Shila, perhaps the Tana of that name, caused a man who had committed
an offence to be whipped. The man complained to the Roman government
that Rab Shila was exercising judicial functions without the authority
of the government. The government sent an officer to investigate the
case, and the complainant was adjudged by the officer to have rendered
himself liable to the death penalty through the offence for which R.
Shila had punished him. The offender was thereupon handed over by
the officer to Rab Shila. But Rab Shila refused to consummate the
sentence, on the ground that since the exile from Palestine, the right
of capital punishment had not been vested in the Jews. Subsequently,
when the man was about to make a second complaint about Rab Shila, Rab
Shila who had been given the staff of judicial authority, killed the
man with his staff.[205] (iv) Another case in point is the following:
A man once declared before Rab (d. 247 C. E.), that he would persist
in a certain course despite Rab’s warning. Rab Kahana who was present
rose up and killed the contumacious man. Rab declared the killing to be
legally justified, but advised R. Kahana to flee to Palestine, since
the new Persian rulers were stricter in punishing bloodshed than the
Romans had been.[206] (v) Lynch law is recognized by the Mishna, when
it allows certain offenders to be struck down _flagrante delicto_.[207]
(vi) In connection with the remark that the one born under the planet
Mars will be a shedder of blood, Raba (4th century) said, ‘I was born
under Mars’; to which his pupil Abaye remarked, ‘Master, you also (as
exilarch) punish and put to death.’[208] (vii) Origen in his letter to
Africanus (240 C. E.) declares that the Jewish Patriarch in Palestine
exercised the power of imposing and carrying out capital sentences.[209]
But the utmost that these cases prove is, that subsequent to 70 C.
E., a capital sentence carried out by a Jew, whether by lynch law or
after judicial trial, was an exception occasionally tolerated through
the generosity, the weakness or the corruption of the Roman or the
Persian authorities. The fact remains that subsequent to 70 C. E., the
Jewish law governing capital punishment fell into disuse. The Amoraim,
although they were the bearers of tradition, were not familiar in
practise with the actual judgment of capital cases and the imposition
of capital punishment. It is clear, therefore, that many of the dicta
of the later Rabbis concerning details of the law of capital punishment
are legal inferences rather than historical facts, and many of their
discussions are discussions of theory as to how the death penalty would
be carried out if the Rabbinic courts should again have jurisdiction.
Similarly, much of the elaboration of criminal legal procedure at
which we have glanced is a theoretic development, dating from the
first centuries of the common era, which was never put to a practical
test. Many elements in it, such as the regulations governing witnesses
and their testimony, are elaborated theoretical developments of early
practise. In their fully developed form, these regulations would
have broken down as unworkable at the first touch of practise. Much
else is on the face of it dialectic, legal discussion conducted
on the principle of the meritorious nature of constant exposition
and interpretation of the law. This principle indeed is quoted in
connection with the decisions governing capital punishment.[210] As
an instance of this type of expository discussion may be mentioned
the decision[211] that strangling should be the punishment for one
who through craft or force gets another into his power, forces
him to serve, and then sells him into slavery. Such a ruling is
hardly a precedent based on practical experience. The discussion in
the Talmud[212] proves it to be only a theoretic case. Similarly,
the restrictions governing the treatment of the apostate city are
admittedly only theoretic, since the conditions required were so many
and so specialized that they could never occur together. It is frankly
confessed, that these conditions are only the result of study-house
discussion conducted for the merit of detailed and far-reaching
interpretation.[213] In exactly the same way, it is openly stated, that
a case of the “rebellious, gluttonous son”[214] never had occurred and
never would occur, the conditions required by the Rabbinic jurists
being practically impossible of occurrence together. The formulation
of these conditions was admittedly only the result of dialectic
development.[215]
A passage was quoted above,[216] prescribing imprisonment in a _kipah_
in certain cases. Where the Talmud asks what is meant by _kipah_, and
R. Jehudah explains that by _kipah_ is meant a den of about five and a
half feet in size,[217] it is clear that we are dealing with traditions
about legal matters which had not had practical application within the
memory of the Amoraim. When, further, we remember the discussions among
the Rabbis themselves, such as which death penalty should go with which
crime, or which would be the correct method of execution, or whether
the dead body has to be hanged only in certain cases or in others also,
and similar debates, it is clear that we often have to do with matters
of theoretic discussion about which there was no certain tradition. In
fact, in one passage, a legal decision concerning capital punishment is
called a decision that will be of practical application only when the
Messiah comes and the Jewish system of capital punishment will be once
more in use.[218]
The result, therefore, to which our investigation leads along various
converging lines is, that originally the death penalty was carried
out through the decisions of the court approximately according to
the demands of the Bible. But at least as early as the beginning of
the Christian era, modifications had arisen, particularly among the
Pharisees, affecting the methods of inflicting the death penalty.[219]
These modifications apparently grew out of two chief causes, (a) the
desire to preserve the body from mutilation or disfigurement (possibly
in part owing to the Pharisaic belief in the resurrection which had not
been of weight with the Sadducees), and (b) the tendency to extend the
golden rule, so as to make the death penalty as humane as possible. But
the Rabbinic courts lost their jurisdiction in capital cases at the
fall of the Jewish state in 70 C. E. With this went the transference
of the problem of capital punishment from the realm of fact to that of
legal theory, and Rabbinic, juristic imagination became free to develop
the field of historical tradition, untrammeled by the restraints of
practise. The compensating spiritual inbreeding, which occurred when
external manifestations of Jewish national life were proscribed,
resulted, in this special legal field as in all other fields of Jewish
thought, in the over luxuriant development of the theory of Jewish
practise. In Amoraic times, the Rabbis no longer recognised with
certainty in many cases, whether a practise was old and traditional, or
whether it was a comparatively new development based only on theoretic
deduction. Even in early Tannaitic times, there was often uncertainty
as to what was known through tradition and what was known through
interpretation. This is brought out very clearly in the account of the
discussion between Hillel and the Bene Bethera on the question of the
sacrifice of the paschal lamb on Sabbath.[220] The Rabbis therefore
often projected legal conceptions into the past as actual facts.[221]
It is impossible for us to pick out from the vast accumulation of
statements, rules and principles governing capital punishment according
to Amoraic ideas, exactly how much is historical tradition founded
on actual practise and how much only theoretic deduction. But from
the beginning of the Rabbinic period, we can clearly trace a growing
feeling of repugnance to capital punishment, which, along various
lines, succeeded in making capital punishment obsolete through legal
theory. Had the later Rabbis ever been granted the right of trying
capital cases, the theory which had been developed would have made
legal capital punishment impossible of application. Thus the Mishna
already could say,[222] that a Sanhedrin condemning to death once in
seven years was called a destroying or bloody Sanhedrin. Rabbi Eleazar
ben Azariah (first cent.) said that it was so called for imposing the
death penalty even once in seventy years.[223]
It should be plainly recognised that capital punishment was never
formally abolished by the Rabbis. The penalty of death was demanded
by the laws contained in the sacred statute book, the Bible, and as
such it was accepted as needing no justification or defence. But it
was legislated out of all practical application in the development of
the law. The Rabbis of the Talmudic era abolished capital punishment
in the only way open to them,--in theory, as they would undoubtedly
have abolished it also in legal practise while retaining it as a dead
letter on the fundamental statute book, the Bible, had Jewish national
independence been regained in their day.