A few words should be added relative to the development of the idea of
capital punishment among the medieval Jews.
In post-Talmudic times, the problem of capital punishment according to
Jewish law scarcely arose. Although the theory of it had been fully
worked out, there were no occasions for the application of the theory,
both because the Temple no longer stood and the Jewish courts had no
jurisdiction,[224] and because after the interruption of _Semicha_
(ordination), no judges were regarded as competent.[225] This statement
is true, however, only with certain limitations. Although as a general
rule the Jewish courts in the diaspora had no jurisdiction in capital
cases, there were times and places in which the power of imposing the
death penalty was vested in the Jewish courts. Thus Asheri (c. 1300)
wrote: “In no country of which I have heard have Jews their own courts
for the trial of criminal cases except here in Spain. It was a source
of great astonishment to me when I came to Spain, that the Spanish Jews
should try criminal cases without the full and authorized Sanhedrin;
but I was informed that this was done in accordance with an order of
the government.”[226] Similarly, we find the Jews of Tudela asking the
viceroy of Navarre, “That he would be pleased to order and that we
practise the Jewish law as our ancestors have hitherto; that is, when a
Jew or Jewess commits a sin, on our magistrates applying to the bailiff
and notifying to him the sin committed, and the punishment it deserved
according to Jewish law, the bailiff shall execute it, and enforce the
sentence of our said magistrates, whether of condemnation or acquittal;
or of any demand from one Jew to another, as we have been accustomed,
not affecting the rights of our lord the king.” This right was granted
them.[227]
Asheri himself unhesitatingly imposed the sentence of death on an
informer.[228] The _Moser_ (informer, _delator_), constituted so
poignant a danger to Jewry in exile, that the death penalty was not
infrequently consummated in his case. Jewish law gives the right to
kill the informer, on the principle of life for life. Since he is
seeking your life, you are justified in saving your own by taking
his.[229] The death sentence on the _Moser_ was pronounced by the
Jewish community and carried out by the non-Jewish authorities to
whom the convicted _delator_ was handed over. Maimonides (12th cent.)
declares that it regularly happens in the cities of the West that they
kill informers, or hand them over to the non-Jews to be killed or
dealt with according to their guilt.[230]
Similarly, Asheri’s son, Jacob, in conjunction with a tribunal of
Rabbis in Toledo, condemned to death the informer Joseph ben Samuel
and handed him over to the royal executioner.[231] Joseph ibn Migas
of Lucena (d. 1141) caused an informer to be stoned on the eve of
the day of Atonement.[232] Others, who approved of the extermination
of informers, or who actually passed the sentence of death on them
and handed them over to the State authorities for execution, were
such leaders of Spanish and North African Jewry as Jonah Gerondi and
Solomon ben Adereth (c. 1280),[233] Isaac ben Shesheth (14th cent.),
Abraham Benveniste (1432), Simon ben Zemach Duran (1400), and his son
Solomon. In the particular case in which Jonah Gerondi and Solomon
ben Adereth acted as the judges (c. 1280), the family of the informer
tried in vain to stir up the non-Jewish authorities by declaring that
a judicial murder had been committed. They claimed that according to
Jewish law, the Jews had long foregone the right of imposing a capital
sentence, that the sentence had not been pronounced by a Sanhedrin
of twenty-three, etc. The authorities refused them a hearing. But
Solomon ben Adereth found it necessary to justify the action that had
been taken. He therefore submitted the case in all its details to the
Rabbis of North France. Only one answer has been preserved,--that of
Rabbi Meir of Rothenburg, who clearly and decidedly ranks himself on
the side of Ben Adereth.[234] But it will be seen that in all these
cases, the utmost power that was allowed to the Jewish tribunal was
that of pronouncing the sentence of death. The consummation of the
sentence was left to the State authorities. On Aug. 21, 1379, at the
request of a delegation of Jews, the royal farmer of taxes, Joseph
Pichon, was beheaded as an informer by the royal executioner. One
result of this affair was, that the Cortes issued the following decree,
depriving the Rabbis and the Jewish courts of the country of the right
of deciding criminal cases: “We ordain and command, that henceforward
it shall not be permitted for any Jews of our kingdoms, whether
rabbis, elders, chiefs or any other persons that now are or shall be
hereafter, to interfere to judge in any criminal cause to which death,
loss of limb or banishment is attached; but they may decide all civil
causes that appertain to them according to their religion. Criminal
cases shall be tried by one of the Alcaldes, chosen by the Jews in the
towns and places of their respective jurisdictions.... This is to be
understood for those criminal cases that have hitherto been tried by
the said Jews”....[235] Subsequently, owing to the influence of Abraham
Benveniste, this right of judging criminal cases was restored to the
Jewish courts in Spain.
But this power could hardly be exercised outside of Spain and North
Africa, and in those lands it could be exercised only in favorable
periods. In Angevin England, “Criminal cases between Jews, except for
the greater felonies, as homicide, mayhem, etc., could be decided in
the Jewish courts according to Jewish law.”[236] In other lands also,
the Jewish courts were sometimes empowered to try lesser criminal
cases; but rarely, if ever, could they independently impose and carry
out the death sentence. At a later period, the Kahals in Eastern Europe
were granted autonomous jurisdiction in civil cases. But their greatest
power hardly exceeded the right given them in Lithuania by charter of
King Michael Wishnevetzki (1669-73), “to summon the criminals before
the Jewish courts for punishment and exclusion from the community when
necessary.” Rabbi Meir Sack emphatically protested against buying the
freedom of Jewish criminals from the authorities. “We should endeavor
to deprive criminals of opportunities to escape justice.” Similarly,
Meir Lublin declares that the death penalty for a murderer, decreed
by the law of the land, should be allowed to be consummated, if the
murderer were a Jew.[237]
It may be stated broadly, that after the Roman period, the right of
pronouncing the death sentence was only rarely granted to the Jews,
while the right of inflicting capital punishment was practically
never vested in the Jewish community. Theoretically, Jewish legal
opinion gave to the leading authorities of the generation or of the
district, the right to act as a competent Sanhedrin of twenty-three
in judging criminal and capital cases, on urgent occasions of popular
wrongdoing.[238] But this right could so rarely be exercised that it
became virtually obsolete.