hygienic laws, of impure things and persons, their purification,
etc.[53]
_Recensions._--The Talmud exists in two recensions: the Jerusalem and
the Babylonian. These two editions represent a double Gemara; the first
(Jerusalem) being an expression of the schools in Palestine and redacted
at Tiberias about 390 A.D.; the second (Babylonian) being an expression
of the schools in Babylonia and redacted about 365-427 A.D.
The Mishna, having been formed into a code, became in its turn what the
Pentateuch had been before it, a basis of discussion and development.
The Gemara of the Jerusalem Talmud embodies the critical discussions and
disquisitions on the Mishna by hundreds of learned doctors who lived in
Palestine, chiefly in Galilee, from the end of the second till about the
middle of the fifth century of the Christian era. The Gemara of the
Babylonian Talmud embodies the criticisms and dissertations on the same
Mishna of numerous learned doctors living in various places in
Babylonia, but chiefly those of the two great schools of Sura and
Pumbaditha.[54] The Babylonian Talmud is written in "West Aramæan," is
the product of six or seven generations of constant development, and is
about four times as large as that of the Jerusalem Talmud, which is
written in "East Aramæan."[55] It should be kept clearly before the mind
that the only difference between these two recensions is in the matter
of commentary. The two sets of doctors whose different commentaries
distinguish the two Talmuds dealt with the same Mishna as a basis of
criticism. But decided differences are noticeable in the subject matter
and style of the two Gemaras represented by the two recensions of the
Talmud. The discussions and commentaries in the Jerusalem Talmud are
simple, brief, and pointed; while those of the Babylonian Talmud are
generally subtle, abstruse, and prolix. The dissertations in the
Jerusalem Talmud are filled to overflowing with archæology, geography,
and history, while the Babylonian Talmud is more marked by legal and
religious development.
But the reader should not form a wrong impression of the contents of the
Talmud. They are a blending of the oral law of the Mishna and the notes
and comments of the sages. The characteristics of both the editions are
legal and religious, but a multitude of references are made in each to
things that have no connection with either religion or law. "The Talmud
does, indeed, offer us a perfect picture of the cosmopolitanism and
luxury of those final days of Rome, such as but few classical or
postclassical writings contain. We find mention made of Spanish fish, of
Cretan apples, Bithynian cheese, Egyptian lentils and beans, Greek and
Egyptian pumpkins, Italian wine, Median beer, Egyptian Zyphus; garments
imported from Pelusium and India, shirts from Cilicia, and veils from
Arabia. To the Arabic, Persian, and Indian materials contained, in
addition to these, in the Gemara, a bare allusion may suffice. So much
we venture to predict, that when once archæological and linguistic
science shall turn to this field, they will not leave it again soon."
_Relation of Talmud to Mishna._--The relation of the Talmud, used in the
popular sense, to the Mishna, raises the question of the relation of the
whole to one of its parts. The varying meanings of Mishna, Gemara, and
Talmud very easily confuse the ordinary reader. If these terms are
considered separately in the order in which they appear in the preceding
sentence, simple mathematical addition will greatly aid in elucidating
matters. The Mishna is a vast mass of tradition or oral law which was
finally reduced to writing about the close of the second century of the
Christian era. The Gemara is the Rabbinical exposition of the meaning of
the Mishna. The Talmud is the sum of the Mishna plus the Gemara. In
other words, the Talmud is the elaboration or amplification of the
Mishna by manifold commentaries, designated as the Gemara. It frequently
happens that the Talmud and the Mishna appear in the same sentence as
terms designating entirely different things. This association in a
different sense inevitably breeds confusion, unless we pause to consider
that the Mishna has a separate existence from the Talmud and a distinct
recension of its own. In this state it is simply a naked code of laws.
But when the Gemara has been added to it the Talmud is the result,
which, in its turn, becomes a distinct entity and may be referred to as
such in the same sentence with the Mishna.
_Relation of Talmud to Pentateuch._--As before suggested, the
Pentateuch, or Mosaic Code, was the Written Law and the very foundation
of ancient Hebrew jurisprudence. The Talmud, composed of the Mishna,
i.e., Tradition, and the Gemara, i.e., Commentary, was the Oral Law,
connected with, derived from, and built upon the Written Law. It must be
remembered that the commonwealth of the Jews was a pure theocracy and
that all law as well as all religion emanated directly or indirectly
from Jehovah. This was as true of Talmudic tradition as of Mosaic
ordinance. Hillel, who interpreted tradition, was as much inspired of
God as was Moses when he received the Written Law on Sinai. Emanuel
Deutsch is of the opinion that from the very beginning of the Mosaic law
there must have existed a number of corollary laws which were used to
interpret and explain the written rules; that, besides, there were
certain enactments of the primitive Council of the Desert, and certain
verdicts issued by the later "judges within the gates"--all of which
entered into the general body of the Oral Law and were transmitted side
by side with the Written Law through the ages.[56] The fourth book of
Ezra, as well as other Apocryphal writings, together with Philo and
certain of the Church Fathers, tells us of great numbers of books that
were given to Moses at the same time that he received the Pentateuch.
These writings are doubtless the source of the popular belief among the
Jews that the traditional laws of the Mishna had existed from time
immemorial and were of divine origin. "Jewish tradition traces the bulk
of the oral injunctions, through a chain of distinctly named
authorities, to 'Sinai itself.' It mentions in detail how Moses
communicated those minutiæ of his legislation, in which he had been
instructed during the mysterious forty days and nights on the Mount, to
the chosen guides of the people, in such a manner that they should
forever remain engraven on the tablets of their hearts."[57] This direct
descent of the Oral Law from the Sacred Mount itself would indicate an
independent character and authority. Nevertheless, Talmudic
interpretation of tradition professed to remain always subject to the
Mosaic Code; to be built upon, and to derive its highest inspiration
from it. But, as a matter of fact, while claiming theoretically to be
subordinate to it, the Talmud finally superseded and virtually displaced
the Pentateuch as a legal and administrative code. This was the
inevitable consequence and effect of the laws of growth and progress in
national existence. Altered conditions of life, at home and in exile,
necessitated new rules of action in the government of the Jewish
commonwealth. The Mosaic Code was found inadequate to the ever-changing
exigencies of Hebrew life. As a matter of fact, Moses laid down only
general principles for the guidance of Hebrew judges. He furnished the
body of the law, but a system of legal procedure was wholly wanting. The
Talmud supplied the deficiency and completed a perfect whole. While yet
in the Wilderness, Moses commanded the Israelites to establish courts
and appoint judges for the administration of justice as soon as they
were settled in Palestine.[58] This clearly indicates that the great
lawgiver did not intend his ordinances and injunctions to be final and
exclusive. Having furnished a foundation for the scheme, he anticipated
that the piety, judgment, and learning of subsequent ages would do the
rest. His expectations were fulfilled in the development of the
traditions afterwards embodied in the Mishna, which is the principal
component part of the Talmud.
As before suggested, with the growth in population and the
ever-increasing complications in social, political, and religious life,
and with the general advance in Hebrew civilization, Mosaic injunction
began to prove entirely inadequate to the national wants. In the time
intervening between the destruction of the first and second Temples, a
number of Mosaic laws had become utter anachronisms; others were
perfectly impracticable, and several were no longer even understood. The
exigencies of an altered mode of life and the changed conditions and
circumstances of the people rendered imperative the enactment of new
laws unknown to the Pentateuch. But the divine origin of the Hebrew
system of law was never for a moment forgotten, whatever the change and
wherever made. The Rabbins never formally repealed or abolished any
Mosaic enactment. They simply declared that it had fallen into
desuetude. And, in devising new laws rendered necessary by changed
conditions of life they invariably invoked some principle or
interpretation of the Written Law.
In the declining years of Jewish nationality, many characteristic laws
of the Pentateuch had become obsolete. The ordinance which determined
the punishment of a stubborn and rebellious son; the enactment which
commanded the destruction of a city given to idolatry; and, above all,
the _lex talionis_ had become purely matters of legend. On the other
hand, many new laws appear in the Talmud of which no trace whatever can
be discovered in the Pentateuch. "The Pharisees," says Josephus, "have
imposed upon the people many laws taken from the tradition of the
Fathers, which are not written in the law of Moses."[59] The most
significant of these is the one providing for Antecedent Warning in
criminal prosecutions, the meaning and purpose of which will be fully
discussed in another chapter.
_Vicissitudes of the Talmud._--An old Latin adage runs: "Habent sua fata
libelli."[60] (Even books are victims of fate). This saying is
peculiarly applicable to the Talmud, which has had, in a general way,
the same fateful history as the race that created it. Proscription,
exile, imprisonment, confiscation, and burning was its lot throughout
the Middle Ages. During a thousand years, popes and kings vied with each
other in pronouncing edicts and hurling anathemas against it. During the
latter half of the sixteenth century it was burned not fewer than six
different times by royal or papal decree. Whole wagonloads were
consigned to the flames at a single burning. In 1286, in a letter to the
Archbishop of Canterbury, Honorius IV described the Talmud as a
"damnable book" (liber damnabilis), and vehemently urged that nobody in
England be permitted to read it, since "all other evils flow out of
it."[61] On New Year's day, 1553, numerous copies of the Talmud were
burned at Rome in compliance with a decree of the Inquisition. And, as
late as 1757, in Poland, Bishop Dembowski, at the instigation of the
Frankists, convened a public assembly at Kamenetz-Podolsk, which decreed
that all copies of the Talmud found in the bishopric should be
confiscated and burned by the hangman.[62]
Of the two recensions, the Babylonian Talmud bore the brunt of
persecution during all the ages. This resulted from the fact that the
Jerusalem Talmud was little read after the closing of the Jewish
academies in Palestine, while the Babylonian Talmud was the popular
edition of eminent Jewish scholars throughout the world.
It is needless to say that the treatment accorded the venerable literary
compilation was due to bitter prejudice and crass ignorance. This is
well illustrated by the circumstance that when, in 1307, Clement V was
asked to issue a bull against the Talmud, he declined to do so, until he
had learned something about it. To his amazement and chagrin, he could
find no one who could throw any light upon the subject. Those who wished
it condemned and burned were totally ignorant of its meaning and
contents. The surprise and disgust of Clement were so great that he
resolved to found three chairs in Hebrew, Arabic, and Chaldee, the
three tongues nearest the idiom of the Talmud. He designated the
Universities of Paris, Salamanca, Bologna, and Oxford as places where
these languages should be taught, and expressed the hope that, in time,
one of these universities might be able to produce a translation of
"this mysterious book."[63] It may be added that these plans of the Pope
were never consummated.
_The Message and Mission of the Talmud._--To appreciate the message and
mission of the Talmud, its contents must be viewed and contemplated in
the light of both literature and history. As a literary production it is
a masterpiece--strange, weird, and unique--but a masterpiece,
nevertheless. It is a sort of spiritual and intellectual cosmos in which
the brain growth and soul burst of a great race found expression during
a thousand years. As an encyclopedia of faith and scholarship it reveals
the noblest thoughts and highest aspirations of a divinely commissioned
race. Whatever the master spirits of Judaism in Palestine and Babylon
esteemed worthy of thought and devotion was devoted to its pages. It
thus became a great twin messenger, with the Bible, of Hebrew
civilization to all the races of mankind and to all the centuries yet to
come. To Hebrews it is still the great storehouse of information
touching the legal, political, and religious traditions of their fathers
in many lands and ages. To the Biblical critic of any faith it is an
invaluable help to Bible exegesis. And to all the world who care for
the sacred and the solemn it is a priceless literary treasure.
As an historical factor the Talmud has only remotely affected the great
currents of Gentile history. But to Judaism it has been the cementing
bond in every time of persecution and threatened dissolution. It was
carried from Babylon to Egypt, northern Africa, Spain, Italy, France,
Germany, and Poland. And when threatened with national and race
destruction, the children of Abraham in every land bowed themselves
above its sacred pages and caught therefrom inspiration to renewed life
and higher effort. The Hebrews of every age have held the Talmud in
extravagant reverence as the greatest sacred heirloom of their race.
Their supreme affection for it has placed it above even the Bible. It is
an adage with them that, "The Bible is salt, the Mischna pepper, the
Gemara balmy spice," and Rabbi Solomon ben Joseph sings:
"The Kabbala and Talmud hoar
Than all the Prophets prize I more;
For water is all Bible lore,
But Mischna is pure wine."
More than any other human agency has the Talmud been instrumental in
creating that strangest of all political phenomena--a nation without a
country, a race without a fatherland.
CHAPTER II
HEBREW CRIMINAL LAW--CRIMES AND PUNISHMENTS
Capital crimes, under Hebrew law, were classified by Maimonides
according to their respective penalties. His arrangement will be
followed in this chapter.[64]
Hebrew jurisprudence provided four methods of capital punishment: (1)
Beheading; (2) Strangling; (3) Burning; (4) Stoning.
Crucifixion was unknown to Hebrew law. This cruel and loathsome form of
punishment will be fully discussed in the second volume of this work.
Thirty-six capital crimes are mentioned by the Pentateuch and the
Talmud.
_Beheading_ was the punishment for only two crimes:
(1) Murder.
(2) Communal apostasy from Judaism to idolatry.
_Strangling_ was prescribed for six offenses:
(1) Adultery.
(2) Kidnaping.
(3) False prophecy.
(4) Bruising a parent.
(5) Prophesying in the name of heathen deities.
(6) Maladministration (the "Rebellious Elder").
_Burning_ was the death penalty for ten forms of incest--criminal
commerce:
(1) With one's own daughter.
(2) With one's own son's daughter.
(3) With one's own daughter's daughter.
(4) With one's own stepdaughter.
(5) With one's own stepson's daughter.
(6) With one's own stepdaughter's daughter.
(7) With one's own mother-in-law.
(8) With one's own mother-in-law's mother.
(9) With one's own father-in-law's mother.
(10) With a priest's daughter.[65]
_Stoning_ was the penalty for eighteen capital offenses:
(1) Magic.
(2) Idolatry.
(3) Blasphemy.
(4) Pythonism.
(5) Pederasty.
(6) Necromancy.
(7) Cursing a parent.
(8) Violating the Sabbath.
(9) Bestiality, practiced by a man.
(10) Bestiality, practiced by a woman.
(11) Sacrificing one's own children to Moloch.
(12) Instigating individuals to embrace idolatry.
(13) Instigating communities to embrace idolatry.
(14) Criminal conversation with one's own mother.
(15) Criminal conversation with a betrothed virgin.
(16) Criminal conversation with one's own stepmother.
(17) Criminal conversation with one's own daughter-in-law.
(18) Violation of filial duty (making the "Prodigal Son").[66]
The crime of _false swearing_ requires special notice. This offense
could not be classified under any of the above subdivisions because of
its peculiar nature. The Mosaic Code ordains in Deut. xix. 16-21: "If a
false witness rise up against any man to testify against him that which
is wrong ... and, behold, if the witness be a false witness, and hath
testified falsely against his brother; then shall ye do unto him, as he
had thought to have done unto his brother ... and thine eye shall not
pity, but life shall go for life, eye for eye, tooth for tooth, hand for
hand, foot for foot." Talmudic construction of this law awarded the same
kind of death to him who had sworn falsely against his brother that
would have been meted out to the alleged criminal, if the testimony of
the false swearer had been true.
_Imprisonment_, as a method of punishment, was unknown to the Mosaic
Code. Leviticus xxiv. 12 and Numbers xv. 34 seem to indicate the
contrary; but the imprisonment therein mentioned undoubtedly refers to
the mere detention of the prisoner until sentence could be pronounced
against him. Imprisonment as a form of punishment was a creation of the
Talmudists who legalized its application among the Hebrews. According to
Mendelsohn, five different classes of offenders were punished by
_imprisonment_:
(1) Homicides; whose crime could not be legally punished with death,
because some condition or other, necessary to produce a legal
conviction, had not been complied with.
(2) Instigators to or procurers of murder; such, for instance, as had
the deed committed by the hands of a hireling.
(3) Accessories to loss of life, as, for instance, when several persons
had clubbed one to death, and the court could not determine the one who
gave the death blow.
(4) Persons who having been twice duly condemned to and punished with
flagellation for as many transgressions of one and the same negative
precept, committed it a third time.
(5) Incorrigible offenders, who, on each of three occasions, had failed
to acknowledge as many warnings antecedent to the commission of one and
the same crime, the original penalty for which was excision.[67]
_Flagellation_ is the only corporal punishment mentioned by the
Pentateuch. The number of stripes administered were not to exceed forty
and were to be imposed in the presence of the judges.[68] Wherever the
Mosaic Code forbade an act, or, in the language of the sages, said "Thou
shalt not," and prescribed no other punishment or alternative, a Court
of Three might impose stripes as the penalty for wrongdoing. Mendelsohn
gives the following classification:
Flagellation is the penalty of three classes of offenses:
(1) The violation of a negative precept, deadly in the sight of heaven.
(2) The violation of any negative precept, when accomplished by means of
a positive act.
(3) The violation of any one of the prohibitive ordinances punishable,
according to the Mosaic law with _excision_, to which, however, no
capital punishment at the instance of a human tribunal is attached.[69]
The Mishna enumerates fifty offenses punishable by stripes, but this
enumeration is evidently incomplete. Maimonides gives a full
classification of all the offenses punishable by flagellation, the
number of which he estimates to be two hundred and seven. The last three
in his list are cases in which the king takes too many wives,
accumulates too much silver or gold, or collects too many horses.[70]
_Slavery_ was the penalty for _theft_ under ancient Hebrew law. This is
the only case where the Mosaic law imposed slavery upon the culprit as a
punishment for his crime; and a loss of liberty followed only where the
thief was unable to make the prescribed restitution. Exodus xxii. 1-3
says:
If a man shall steal an ox, or a sheep, and kill it, or sell it, he
shall restore five oxen for an ox, and four sheep for a sheep ...
if he have nothing, then he shall be sold for his theft.
Penal servitude, or slavery, was imposed only on men, never on women.
Slavery, as a penalty for theft, was limited to a period of six years in
obedience to the Mosaic ordinance laid down in Exodus xxi. 2.
If thou buy a Hebrew servant, six years he shall serve: and in the
seventh, he shall go free for nothing.
It should be remarked, in this connection, that slavery, as a punishment
for crime, carried with it none of the odium and hardship usually borne
by the slave. The humanity of Hebrew law provided that the culprit,
thief though he was, should not be degraded or humiliated. He could be
compelled to do work for his master, such as he had been accustomed to
do while free, but was relieved by the law from all degrading
employment, such as "attending the master to the bath, fastening or
unfastening his sandals, washing his feet, or any other labor usually
performed by the regular slave." Hebrew law required such kindly
treatment of the convict thief by his master that this maxim was the
result: "He who buys a Hebrew slave, buys himself a master."
_Internment_ in a city of refuge was the punishment for accidental
homicide. Mischance or misadventure, resulting in the slaying of a
fellow-man, was not, properly speaking, a crime; nor was exile in a city
of refuge considered by the Talmudists a form of punishment. But they
are so classified by most writers on Hebrew criminal law. Among nearly
all ancient nations there was a place of refuge for the unfortunate and
downtrodden of the earth; debtors, slaves, criminals, and political
offenders; some sacred spot--an altar, a grave, or a sanctuary dedicated
and devoted to some divinity who threw about the hallowed place divine
protection and inviolability. Such was at Athens the Temple of Theseus,
the sanctuary of slaves. It will be remembered that the orator
Demosthenes took refuge in the Temple of Poseidon as a sanctuary, when
pursued by emissaries of Antipater and the Macedonians.[71] Among the
ancient Hebrews, there were six cities of refuge; three on either side
of the Jordan. They were so located as to be nearly opposite each other.
Bezer in Reuben was opposite Hebron in Judah; Schechem in Ephraim was
opposite to Ramoth in Gad; and Golan in Manasseh was opposite to Kedesh
in Naphtali.[72] Highways in excellent condition led from one to the
other. Signposts were placed at regular intervals to indicate the way to
the nearest city of refuge. These cities were designated by the law as
asylums or sanctuaries for the protection of innocent slayers of their
fellow-men from the "avenger of blood." Among nearly all primitive
peoples of crude political development, such as the early Germans, the
ancient Greeks and Slavs, certain North American savage tribes and the
modern Arabs, Corsicans and Sicilians, the right of private vengeance
was and is taught and tolerated. Upon the "next of kin," the "avenger of
blood," devolved the duty of hunting down and slaying the guilty man.
Cities of refuge were provided by Mosaic law for such an emergency
among the Hebrews. This provision of the Mosaic Code doubtless sprang
from a personal experience of its founder. Bible students will remember
that Moses slew an Egyptian and was compelled to flee in
consequence.[73] Remembering his dire distress on this occasion, the
great lawgiver was naturally disposed to provide sanctuaries for others
similarly distressed. But the popular notion of the rights of sanctuary
under the Mosaic law is far from right. That a common murderer could, by
precipitate flight, reach one of the designated places and be safe from
his pursuers and the vengeance of the law, is thought by many. The
observation of Benny on this point is apt and lucid:
Internment in one of the cities of refuge was not the scampering
process depicted in the popular engraving: a man in the last stage
of exhaustion at the gate of an Eastern town; his pursuers close
upon him, arrows fixed and bows drawn; his arms stretched
imploringly towards a fair Jewish damsel, with a pitcher gracefully
poised upon her head. This may be extremely picturesque, but it is
miserably unlike the custom in vogue among the later Hebrews.
Internment in a city of refuge was a sober and judicial proceeding.
He who claimed the privilege was tried before the Sanhedrin like
any ordinary criminal. He was required to undergo examination; to
confront witnesses, to produce evidence, precisely as in the case
of other offenders. He had to prove that the homicide was purely
accidental; that he had borne no malice against his neighbor; that
he had not lain in wait for him to slay him. Only when the judges
were convinced that the crime was homicide by misadventure was the
culprit adjudged to be interned in one of the sheltering cities.
There was no scurrying in the matter; no abrupt flight; no hot
pursuit, and no appeal for shelter. As soon as judgment was
pronounced the criminal was conducted to one of the appointed
places. He was accompanied the whole distance by two
talmide-chachamin-disciples of the Rabbins. The avengers of the
blood dared not interfere with the offender on the way. To slay him
would have been murder, punishable with death.
_Execution of Capital Sentences._ (1) _Beheading._--The Hebrews
considered beheading the most awful and ignominious of all forms of
punishment. It was the penalty for deliberate murder and for communal
apostasy from Judaism to idolatry, the most heinous offenses against the
Hebrew theocracy. Beheading was accomplished by fastening the culprit
securely to a post and then severing his head from his body by a stroke
with a sword.[74]
(2) _Strangling._--The capital punishment of strangling was effected by
burying the culprit to his waist in soft mud, and then tightening a cord
_wrapped in a soft cloth_ around his neck, until suffocation ensued.[75]
(3) _Burning._--The execution of criminals by burning was not done by
consuming the living person with fire, as was practiced in the case of
heretics by prelates in the Middle Ages and in the case of white
captives by savages in colonial days in America. Indeed, the term
"burning" seems to be a misnomer in this connection, for the culprit was
not really burned to death. He was simply suffocated by strangling. As
in the case of strangling, the condemned man was placed in a pit dug in
the ground. Soft dirt was then thrown in and battered down, until
nothing but his head and chest protruded. A cord, wrapped in a soft
cloth, was then passed once around his neck. Two strong men came
forward, grasped each an end, and drew the cord so hard that suffocation
immediately followed. As the lower jaw dropped from insensibility and
relaxation, a lighted wick was quickly thrown into his mouth. This
constituted the burning.[76] There is authority for the statement that
instead of a lighted wick, molten lead was poured down the culprit's
throat.[77]
(4) _Stoning._--Death by stoning was accomplished in the following
manner: The culprit was taken to some lofty hill or eminence, made to
undress completely, if a man, and was then precipitated violently to the
ground beneath. The fall usually broke the neck or dislocated the spinal
cord. If death did not follow instantaneously the witnesses hurled upon
his prostrate body heavy stones until he was dead. If the first stone,
so heavy as to require two persons to carry it, did not produce death,
then bystanders threw stones upon him until death ensued. Here, again,
"stoning" to death is not strictly accurate. Death usually resulted from
the fall of the man from the platform, scaffold, hill, or other
elevation from which he was hurled. It was really a process of
neck-breaking, instead of stoning, as burning was a process of
suffocation, instead of consuming with fire.
These four methods of execution--beheading, strangling, burning, and
stoning--were the only forms of capital punishment known to the ancient
Hebrews. Crucifixion was never practiced by them; but a posthumous
indignity, resembling crucifixion, was employed as an insult to the
criminal, in the crimes of idolatry and blasphemy. In addition to being
stoned to death, as a punishment for either of these crimes, the dead
body of the culprit was then hanged in public view as a means of
rendering the offense more hideous and the death more ignominious. This
_hanging_ to a tree was in obedience to a Mosaic ordinance contained in
Deut. xxi. 22. The corpse was not permitted, however, to remain hanging
during the night.
The burial of the dead body of the criminal immediately followed
execution, but interment could not take place in the family burial
ground. Near each town in ancient Palestine were two cemeteries; in one
of them were buried those criminals who had been executed by beheading
or strangling; in the other were interred those who had been put to
death by stoning or burning. The bodies were required to remain, thus
buried, until the flesh had completely decayed and fallen from the bone.
The relatives were then permitted to dig up the skeletons and place them
in the family sepulchers.
CHAPTER III
HEBREW CRIMINAL LAW--COURTS AND JUDGES
The Hebrew tribunals were three in kind: the Great Sanhedrin; the Minor
Sanhedrin; and the Lower Tribunal, or the Court of Three.
The Great Sanhedrin, or Grand Council, was the high court of justice and
the supreme tribunal of the Jews. It sat at Jerusalem. It numbered
seventy-one members. Its powers were legislative, executive, and
judicial. It exercised all the functions of education, of government,
and of religion. It was the national parliament of the Hebrew Theocracy,
the human administrator of the divine will. It was the most august
tribunal that ever interpreted or administered religion to man.
_The Name._--The word "Sanhedrin" is derived from the Greek ([Greek:
synedrion]) and denotes a legislative assembly or an ecclesiastical
council deliberating in a sitting posture. It suggests also the gravity
and solemnity of an Oriental synod, transacting business of great
importance. The etymology of the word indicates that it was first used
in the later years of Jewish nationality. Several other names are also
found in history to designate the Great Sanhedrin of the Jews. The
Council of Ancients is a familiar designation of early Jewish writers.
It is called Gerusia, or Senate, in the second book of Maccabees.[78]
Concilium, or Grand Council, is the name found in the Vulgate.[79] The
Talmud designates it sometimes as the Tribunal of the Maccabees, but
usually terms it Sanhedrin, the name most frequently employed in the
Greek text of the Gospels, in the writings of the Rabbins, and in the
works of Josephus.[80]
_Origin of the Great Sanhedrin._--The historians are at loggerheads as
to the origin of the Great Sanhedrin. Many contend that it was
established in the Wilderness by Moses, who acted under divine
commission recorded in Numbers xi. 16, 17: "Gather unto me seventy of
the elders of Israel, whom thou knowest to be the elders of the people,
and officers of them; and bring them unto the tabernacle of the
congregation, that they may stand with thee; and I will take of the
Spirit that is upon thee and will put it upon them; and they shall bear
the burden of the people with thee, that thou bearest it not alone."
Over the seventy elders, Moses is said to have presided, making
seventy-one, the historic number of the Great Sanhedrin. Several
Christian historians, among them Grotius and Selden, have entertained
this view; others equally celebrated have maintained contrary opinions.
These latter contend that the council of seventy ordained by Moses
existed only a short time, having been established to assist the great
lawgiver in the administration of justice; and that, upon the entrance
of the children of Israel into the Promised Land, it disappeared
altogether. The writers who hold this view contend that if the great
assembly organized in the Wilderness was perpetuated side by side with
the royal power, throughout the ages, as the Rabbis maintained, some
mention of this fact would, in reason, have been made by the Bible,
Josephus, or Philo.
The pages of Jewish history disclose the greatest diversity of opinion
as to the origin of the Great Sanhedrin. The Maccabean era is thought by
some to be the time of its first appearance. Others contend that the
reign of John Hyrcanus, and still others that the days of Judas
Maccabeus, marked its birth and beginning. Raphall, having studied with
care its origin and progress, wrote: "We have thus traced the existence
of a council of Zekenim or Elders founded by Moses, existing in the days
of Ezekiel, restored under the name of Sabay Yehoudai, or Elders of the
Jews, under Persian dominion; Gerusia, under the supremacy of the
Greeks; and Sanhedrin under the Asmonean kings and under the
Romans."[81]
Brushing aside mere theory and speculation, one historical fact is clear
and uncontradicted, that the first Sanhedrin Council clothed with the
general judicial and religious attributes of the Great Sanhedrin of the
times of Jesus, was established at Jerusalem between 170 and 106 B.C.
_Organization of the Great Sanhedrin._--The seventy-one members
composing the Great Sanhedrin were divided into three chambers:
The chamber of priests;
The chamber of scribes;
The chamber of elders.
The first of these orders represented the religious or sacerdotal; the
second, the literary or legal; the third, the patriarchal, the
democratic or popular element of the Hebrew population. Thus the
principal Estates of the Commonwealth of Israel were present, by
representation, in the great court and parliament of the nation.
Matthew refers to these three orders and identifies the tribunal that
passed judgment upon Christ: "From that time forth, began Jesus to shew
unto his disciples, how that he must go unto Jerusalem, and suffer many
things of the elders and chief priests and scribes, and be killed and
raised again the third day."[82]
Theoretically, under the Hebrew constitution, the "seventy-one" of the
three chambers were to be equally divided:
Twenty-three in the chamber of priests,
Twenty-three in the chamber of scribes,
Twenty-three in the chamber of elders.
A total of sixty-nine, together with the two presiding officers, would
constitute the requisite number, seventy-one. But, practically, this
arrangement was rarely ever observed. The theocratic structure of the
government of Israel and the pious regard of the people for the
guardians of the Temple, gave the priestly element a predominating
influence from time to time. The scribes, too, were a most vigorous and
aggressive sect and frequently encroached upon the rights and privileges
of the other orders. Abarbanel, one of the greatest of the Hebrew
writers, has offered this explanation: "The priests and scribes
naturally predominated in the Sanhedrin because, not having like the
other Israelites received lands to cultivate and improve, they had
abundant time to consecrate to the study of law and justice, and thus
became better qualified to act as judges."[83]
_Qualifications of Members of the Great Sanhedrin._--The following
qualifications were requisite to entitle an applicant to membership in
the Great Sanhedrin:
(1) _He must have been a Hebrew and a lineal descendant of Hebrew
parents._[84]
(2) _He must have been "learned in the law"; both written and
unwritten._
His legal attainment must have included an intimate acquaintance with
all the enactments of the Mosaic Code, with traditional practices, with
the precepts and precedents of the colleges, with the adjudications of
former courts and the opinions of former judges. He must have been
familiar not only with the laws then actively in force, but also with
those that had become obsolete.[85]
(3) _He must have had judicial experience; that is, he must have
already filled three offices of gradually increasing dignity, beginning
with one of the local courts, and passing successively through two
magistracies at Jerusalem._[86]
(4) _He must have been thoroughly proficient in scientific knowledge._
The ancient Sanhedrists were required to be especially well grounded in
astronomy and medicine. They were also expected to be familiar with the
arts of the necromancer.[87] We are also led to believe from the
revelations of the Talmud that the judges of Israel were well versed in
the principles of physiology and chemistry, as far as these sciences
were developed and understood in those days. History records that Rabbi
Ismael and his disciples once engaged in experimental dissection in
order to learn the anatomy of the human frame. On one occasion a
deceitful witness tried to impose upon a Hebrew court by representing
spermatic fluid to be the albumen of an egg. Baba bar Boutah was
enabled, from his knowledge of the elements of chemistry, to demonstrate
the fact of fraud in the testimony of the witness. Eighty disciples of
the famous Academy of Hillel are said to have been acquainted with every
branch of science known in those days.[88]
(5) _He must have been an accomplished linguist; that is, he must have
been thoroughly familiar with the languages of the surrounding nations._
Interpreters were not allowed in Hebrew courts. A knowledge of several
languages was, therefore, indispensable to the candidate who sought
membership in the Great Sanhedrin. "In the case of a foreigner being
called as a witness before a tribunal, it was absolutely necessary that
two members should understand the language in which the stranger's
evidence was given; that two others should speak to him; while another
was required to be both able to understand and to converse with the
witness. A majority of three judges could always be obtained on any
doubtful point in the interpretation of the testimony submitted to the
court. At Bither there were three Rabbins acquainted with every language
then known, while at Jabneh there were said to be four similarly endowed
with the gift of 'all the tongues.'"[89]
(6) _He must have been modest, popular, of good appearance, and free
from haughtiness._[90]
The Hebrew mind conceived modesty to be the natural result of that
learning, dignity, and piety which every judge was supposed to possess.
The qualification of "popularity" did not convey the notion of
electioneering, hobnobbing and familiarity. It meant simply that the
reputation of the applicant for judicial honors was so far above
reproach that his countrymen could and would willingly commit all their
interests of life, liberty, and property to his keeping. By "good
appearance" was meant that freedom from physical blemishes and defects,
and that possession of physical endowments that would inspire respect
and reverence in the beholder. The haughty judge was supposed to be
lacking in the elements of piety and humility which qualified him for
communion with God. Haughtiness, therefore, disqualified for admission
to the Great Sanhedrin.
(7) _He must have been pious, strong, and courageous._[91]
Piety was the preëminent qualification of a judge of Israel. Impiety was
the negation of everything Israelitish. Strength and courage are
attributes that all judges in all ages and among all races have been
supposed to possess in order to be just and righteous in their
judgments.
_Disqualifications._--Disqualifications of applicants for membership in
the Great Sanhedrin are not less interesting than qualifications. They
are in the main mere negatives of affirmatives which have already been
given, and would seem, therefore, to be superfluous. But they are
strongly accentuated in Hebrew law, and are therefore repeated here.
(1) _A man was disqualified to act as judge who had not, or had never
had, any regular trade, occupation, or profession by which he gained his
livelihood._
The reason for this disqualification was based upon a stringent maxim of
the Rabbins: "He who neglects to teach his son a trade, is as though he
taught him to steal!" A man who did not work and had never labored in
the sweat of his brow for an honest livelihood, was not qualified,
reasoned the Hebrew people, to give proper consideration or extend due
sympathy to the cause of litigants whose differences arose out of the
struggles of everyday life.
(2) _In trials where the death penalty might be inflicted, an aged man,
a person who had never had any children of his own, and a bastard were
disqualified to act as judge._
A person of advanced years was disqualified because according to the
Rabbins old age is frequently marked by bad temper; and "because his
years and infirmities were likely to render him harsh, perhaps obstinate
and unyielding." On the other hand, youth was also a disqualification to
sit in the Sanhedrin. According to the Rabbis, twenty-five years was the
age which entitled a person to be called a Man;[92] but no one was
eligible to a seat in the Sanhedrin until he had reached the age of
forty years.[93] The ancient Hebrews regarded that period as the
beginning of discretion and understanding.
A person without children was not supposed to possess those tender
paternal feelings "which should warm him on behalf of the son of Israel
who was in peril of his life."
The stain of birth and the degradation in character of a bastard were
wholly inconsistent with the high ideals of the qualifications of a
Hebrew judge.
(3) _Gamblers, dice players, bettors on pigeon matches, usurers, and
slave dealers were disqualified to act as judges._
The Hebrews regarded gambling, dice playing, betting on pigeon matches,
and other such practices as forms of thievery; and thieves were not
eligible to sit as judges in their courts. No man who was in the habit
of lending money in an usurious manner could be a judge. It was
immaterial whether the money was lent to a countryman or a stranger.
Slave dealers were disqualified to act as judges because they were
regarded as inhuman and unsympathetic.
(4) _No man was qualified to be a judge who had dealt in the fruits of
the seventh year._
Such a person was deemed lacking in conscience and unfitted to perform
judicial functions.
(5) _No man who was concerned or interested in a matter to be
adjudicated was qualified to sit in judgment thereon._
This is a universal disqualification of judges under all enlightened
systems of justice. The weakness and selfishness of human nature are
such that few men are qualified to judge impartially where their own
interests are involved.
(6) _All relatives of the accused man, of whatever degree of
consanguinity, were disqualified from sitting in judgment on his case._
This is only a variation of the disqualification of interest.
(7) _No person who would be benefited, as heir, or otherwise, by the
death or condemnation of an accused man, was qualified to be his judge._
This, too, is a variation of the disqualification of interest.
(8) _The king could not be a member of the Sanhedrin._
Royalty disqualified from holding the place of judge because of the
high station of the king and because his exercising judicial functions
might hamper the administration of justice.
And, finally, in closing the enumeration of disqualifications, it may be
added that an election to a seat obtained by fraud or any unfair means
was null and void. No respect was shown for the piety or learning of
such a judge; his judicial mantle was spat upon with scorn, and his
fellow judges fled from him as from a plague or pest. Hebrew contempt
for such a judge was expressed in the maxim: "The robe of the unfairly
elected judge is to be respected not more than the blanket of an ass."
_Officers of the Great Sanhedrin._--Two presiding officers directed the
proceedings of the Great Sanhedrin. One of these, styled _prince_
(nasi), was the chief and the president of the court. The other, known
as the _father of the Tribunal_ (ab-beth-din), was the vice-president.
There has been much discussion among the historians as to the particular
chamber from which the president was chosen. Some have contended that
the presidency of the Sanhedrin belonged by right to the high priest.
But the facts of history do not sustain this contention. Aaron was high
priest at the time when Moses was president of the first Sanhedrin in
the Wilderness; and, besides, the list of presidents preserved by the
Talmud reveals the names of many who did not belong to the priesthood.
Maimonides has made the following very apt observation on the subject:
"Whoever surpassed his colleagues in wisdom was made by them chief of
the Sanhedrin."[94]
According to most Jewish writers, there were two scribes or secretaries
of the Sanhedrin. But several others contend that there were three.
Benny says: "Three scribes were present; one was seated on the right,
one on the left, the third in the center of the hall. The first recorded
the names of the judges who voted for the acquittal of the accused, and
the arguments upon which the acquittal was grounded. The second noted
the names of such as decided to condemn the prisoner and the reasons
upon which the conviction was based. The third kept an account of both
the preceding so as to be able at any time to supply omissions or check
inaccuracies in the memoranda of his brother reporters."[95]
In addition to these officers, there were still others who executed
sentences and attended to all the police work of legal procedure. They
were called _shoterim_.[96]
There was no such officer as a public prosecutor or State's attorney
known to the laws of the ancient Hebrews. The witnesses to the crime
were the only prosecutors recognized by Hebrew criminal jurisprudence;
and in capital cases they were the legal executioners as well.
There was also no such body as the modern Grand Jury known to ancient
Hebrew criminal law. And no similar body of committee of the Sanhedrin
performed the accusatory functions of the modern Grand Jury. The
witnesses were the only accusers, and their testimony was both the
indictment and the evidence. Until they testified, the man suspected was
deemed not only innocent but unaccused.
The profession of the law, in the modern sense of the term, was no part
of the judicial system of the ancient Hebrews. There were no advocates
as we know them. There were, indeed, men learned in the law--Pharisees
and Sadducees--who knew all the law. There were doctors of the law: men
whom Jesus confounded when a youth in the Temple at the age of
twelve.[97] But there were no lawyers in the modern sense: professional
characters who accept fees and prosecute cases. The judges and disciples
performed all the duties of the modern attorney and counselor-at-law.
The prophets were the sole orators of Hebrew life, but they were never
allowed to appear as defendants of accused persons. Indeed, they
themselves were at times compelled to play the role of defendants.
Jeremiah is an illustrious example.[98] Both Keim[99] and Geikie[100]
speak of a Baal Rib, a counsel appointed to see that everything possible
was done to secure the rights of an accused person at a Hebrew criminal
trial. But these statements are not in accord with standard works on
ancient Hebrew jurisprudence. Indeed, Friedlieb emphatically denies that
there was any such person as a Baal Rib or Dominus Litis among the
ancient Hebrews.[101] It seems that in the closing years of Jewish
nationality, specially retained advocates were known, for St. Luke tells
us that the Jews employed Tertullus, a certain orator, to prosecute St.
Paul.[102] But this was certainly an exceptional case. It is
historically certain that in the early ages of the Jewish Commonwealth
litigants pleaded their own causes. This we learn from the case of the
two women who appeared before King Solomon, and laid before him their
respective claims to a child.[103]
_Compensation of Officers._--The judges of Israel were originally not
paid anything for their services. The honor of the office itself was
considered sufficient emolument for labors performed. Indeed, the office
of teacher and judge in Israel was so highly prized that the struggles
and sacrifices of a lifetime were not considered too great to pay for a
place in the Great Sanhedrin. Such high station was regarded as a sacred
sphere into which the idea of material gain should not enter. The
regular court days were, therefore, spent by the judge on the bench,
without any expectation of reward for his services. The other days of
the week he spent in earning a livelihood. But in later years of the
national life a change seems to have taken place. The ancient rule was
so far modified that when the services of the judge were required on
days when he was engaged in his private pursuits, custom and the law
gave him the right to claim a substitute during the time he was occupied
on the bench; or, in default of a substitute, to claim remuneration for
the time which he had lost. Another modification was that if his legal
duties required his entire time, the judge in Israel was entitled to
support from the communal treasury, and was even permitted to accept
fees from litigants. This practice was discouraged, however, by the
Rabbis, who looked with disfavor upon the appointment of judges who were
not entirely able to support themselves.
The secretaries and other officers of subordinate dignity were paid for
their services.[104]
_Sessions of the Courts._--In the early days of the Hebrew Commonwealth
the laws provided for no regular court days. The Sanhedrin convened as
occasion required, to transact such business and dispose of such cases
as came before it. But this practice was oftentimes found to be
expensive and annoying to litigants who came into Jerusalem from the
country and found no courts in session. To accommodate the country folk,
the farmers, and shepherds, Ezra and his coadjutors of the Great
Assembly designated Mondays and Thursdays as regular court days. This
enactment was not prohibitive, however. Court might be held on any day
of the week that necessity required. The reason assigned by the Rabbins
for the selection of Mondays and Thursdays as court days was that on
those days people from the country usually congregated in populous
places, in their houses of worship, to hear the law read and
interpreted. While in attendance upon these sacred services, it was
thought that the time was both convenient and propitious for the
settlement of their legal difficulties.[105]
The authorities are divided as to the exact official hours of the day
for holding court. "The Sanhedrin sat from the close of the morning
sacrifice to the time of the evening sacrifice," is the language of the
Jerusalem Talmud.[106] Mendelsohn says: "The official hours for holding
court were between the morning service and noon; but a suit entered upon
during the legal hours could be carried on until evening, and civil
cases could be continued even after nightfall."[107] But in no case of a
criminal nature could the court continue its session during the
night.[108]
The Minor Sanhedrins in the provinces, as well as the local Courts of
Three, usually held their sessions in the most public place, that is, at
the city gate. The two Minor Sanhedrins of Jerusalem held their sessions
at the entrance to the Temple-mound and to the woman's department
respectively. The Great Sanhedrin convened in an apartment of the
national temple at Jerusalem, known as the _Lishkath haggazith_. This
apartment was the celebrated "Hall of Hewn Stones."[109]
_Recruitments._--The young Hebrew disciple who possessed the necessary
mental, spiritual, and personal qualifications for judicial honors was
styled Haber, which means associate, fellow.[110] Such a disciple was
first solemnly ordained and received the title of Zaken (elder) or
Rabbi. This title rendered him eligible to membership in the different
courts. But that he might acquire necessary experience for membership in
the Great Sanhedrin and became a sage worthy of Israel, he was required
to begin at the lowest rung of the judicial ladder and work gradually to
the top. He was first appointed by the Great Sanhedrin to a place in one
of the local courts, consisting of three members; he then served as a
member of one of the provincial Sanhedrins; was then promoted to the
first, and afterwards to the second Minor Sanhedrin at Jerusalem; and
was elevated finally to the Great Sanhedrin itself.[111] After this
manner, all the courts of the ancient Hebrews were recruited and
replenished from time to time; the young aspirant to judicial favors
beginning in the local Court of Three and rising by successive steps to
the Great Sanhedrin at Jerusalem.
The exact method of filling vacancies and thus replenishing the
membership of the Great Sanhedrin is not certainly known.[112] The
following extract from the Talmud, however, is thought to be
authoritative:
In front of them (the judges of the Great Sanhedrin) sat three rows
of learned disciples; each of them had his own special place.
Should it be necessary to promote one of them to the office of
judge, one of those in the foremost row was selected. His place was
then supplied by one in the second row, while one from the third
was in turn advanced to the second. This being done, someone was
then chosen from the congregation to supply the vacancy thus
created in the third row. But the person so appointed did not step
directly into the place occupied by the one last promoted from the
third row, but into the place that beseemed one who was only newly
admitted.[113]
_Quorum of the Great Sanhedrin._--Twenty-three members constituted a
quorum of the Great Sanhedrin. This was the full number of the
membership of a Minor Sanhedrin.
_Number of Votes Required to Convict._--"In criminal trials a majority
of one vote is sufficient for an acquittal; but for a condemnation a
majority of two is necessary," is the language of the Mishna.[114] The
full membership of the Great Sanhedrin was seventy-one. A condemnation
by thirty-five acquitted the accused; a condemnation by thirty-six also
acquitted. At least thirty-seven votes were needed to convict. If a bare
quorum was present, at least thirteen votes were necessary to condemn.
A very peculiar rule of Hebrew law provided that "a simultaneous and
unanimous verdict of guilty rendered on the day of trial, had the effect
of an acquittal."[115] Such a verdict was considered to be lacking in
the element of mercy, and was thought to result more from conspiracy and
mob violence than from mature judicial deliberation.
_Jurisdiction of the Great Sanhedrin._--The jurisdiction of the Great
Sanhedrin is briefly and concisely stated in the Mishna:
_The judgement of the seventy-one is besought when the affair
concerns a whole tribe or is regarding a false prophet or the
high-priest; when it is a question whether war shall be declared or
not; when it has for its object the enlargement of Jerusalem or its
suburbs; whether tribunals of twenty-three shall be instituted in
the provinces, or to declare that a town has become defiled, and to
place it under ban of excommunication.[116]_
Edward Gibbon has also defined the jurisdiction of the same court as
follows:
_With regard to civil objects, it was the supreme court of appeal;
with regard to criminal matters, a tribunal constituted for the
trial of all offences that were committed by men in any public
station, or that affected the peace and majesty of the people. Its
most frequent and serious occupation was the exercise of judicial
power. As a council of state and as a court of justice, it
possessed many prerogatives. Every power was derived from its
authority, every law was ratified by its sanction._
The Great Sanhedrin possessed all the powers and attributes of a
national parliament and a supreme court of judicature. It corresponded
to the Areopagus of Athens and to the senate of Rome. It took cognizance
of the misconduct of priests and kings. Josephus tells us that Herod the
Great was arraigned as a criminal before its judges, and that King
Hyrcanus himself obeyed its mandates and decrees.
_Appeals._--Appeals were allowed from a Minor Sanhedrin to the Great
Sanhedrin. But there was no appeal from a mandate, judgment, or decree
of the Great Sanhedrin. "Its authority was supreme in all matters; civil
and political, social, religious, and criminal."
It is believed that enough has been said touching the character,
organization, and jurisdiction of the supreme tribunal of the ancient
Hebrews to satisfy the average reader. Indeed, it may be that this limit
has been exceeded. The remainder of this chapter will be devoted to a
short review of the Minor Sanhedrins and the Courts of Three.
_Minor Sanhedrins._--There was no fixed number of Minor Sanhedrins for
the administration of Justice in the Hebrew Commonwealth. Wherever and
whenever, in any town or city inhabited by at least one hundred and
twenty families, the people desired a Sanhedrin of three-and-twenty
members, such a tribunal was established. For this purpose, an
application was made to the Great Sanhedrin at Jerusalem, which
dispatched a mandate to the town ordering the residents to assemble and
to nominate from among themselves persons qualified to act as judges.
The electors were expected to bear in mind the qualifications that would
fit a judge for membership in the Great Sanhedrin, to which all local
judges might eventually be elevated. Accordingly, only "good men and
true" were chosen at the town mass meeting. Immediately upon receipt of
the return to the mandate, an authorization was sent back from Jerusalem
to the town or city which confirmed the election and constituted the
judges selected a Sanhedrin of three-and-twenty members.[117]
_Jurisdiction of the Minor Sanhedrins._--The jurisdiction of the Minor
Sanhedrins extended to nearly all criminal cases involving imprisonment
or seclusion for life, internment in a city of refuge, and capital
punishment. Adultery, seduction, blasphemy, incest, manslaughter, and
murder belonged to these different classes. This court condemned an ox
to be butchered that had gored a man to death. The condemnation
proceedings were something in the nature of a trial of the beast; and
the owner was severely fined where the evidence proved that he knew the
vicious disposition and habits of the animal. The deliberations at the
trial of the bull were most careful and solemn, since the value of a
human life was involved in the proceedings and had to be estimated in
the judgment.
Besides jurisdiction in criminal matters, the Sanhedrins of
three-and-twenty members performed certain civil functions. They were
the tax boards of the various provinces. They constituted the regular
agencies of government for the distribution of public charity. The
management and administration of public elementary schools were under
their control. The legal standards of weights and measures were
inspected by them and received their seals. Sanitary regulations,
repairing the defenses of walled cities, and maintaining the public
highways in good condition, were among the duties of the Minor
Sanhedrins.
The qualifications of judges of these courts were the same as those
required for membership in the Great Sanhedrin. This was true because
the judges of the provincial courts might be promoted to the supreme
tribunal at Jerusalem. The Minor Sanhedrins might be very aptly
described as the _nisi prius_ courts of the Commonwealth of Israel. It
was in these courts of three-and-twenty members that the bulk of Hebrew
litigation was disposed of. It seems that, though equal in number, they
were not all regarded as equal in learning or authority. It is
distinctly stated that appeals could be taken from one Minor Sanhedrin
to another "deemed of superior authority."[118] The difference was
probably due to the fact that in the larger towns were located colleges
and schools, some of whose professors were doubtless either advisers or
members of the local Sanhedrin. At any rate, when a difficult question,
civil or criminal, could not be determined, for want of an authoritative
and registered decision, by an ordinary Sanhedrin of three-and-twenty
judges, the matter was referred to the nearest neighboring Sanhedrin
thought to be of greater repute. If no authentic tradition offering a
solution of the litigated question was in the possession of the
Sanhedrin to which appeal had been taken, the matter was then referred
to the first Minor Sanhedrin in Jerusalem which sat in the Har-habaith.
If the judges of this court were themselves without precedent touching
upon the litigated proposition, it was still further referred to the
second Minor Sanhedrin of Jerusalem, located in the Azarah. If, again,
this Court was without the necessary tradition that would enable it to
decide the question, the matter was finally brought before the Great
Sanhedrin. If this august tribunal was without precedent and tradition
that would enable its members to dispose of the question according to
adjudicated cases, they then decided, nevertheless, in accordance with
the sentiments and principles of natural justice.
It should be remembered that of the Minor Sanhedrins to which every town
of one hundred and twenty families was entitled, two sat at Jerusalem.
It was left optional with a litigant from the provinces to appeal to the
local Sanhedrin or to one of the Minor Sanhedrins in Jerusalem. Local
bias or prejudice was thus avoided.
_Lower Tribunals._--The lowest order of Hebrew tribunal was the Court of
Three, composed of judges selected by the litigants themselves. The
plaintiff chose one member, the defendant selected another, and these
two chose a third. A majority opinion decided all questions. In the
later years of Jewish nationality, it was thought best to have at least
one authorized jurist (mumcha) in the Court of Three. This particular
judge was probably an appointee of the Great Sanhedrin from among the
young disciples (Zaken or Rabbis). This appointment was doubtless
intended to give repute to the local court and experience to the legal
aspirant, as well as to furnish a possible recruit to the Great
Sanhedrin.[119]
These courts corresponded very nearly to the modern courts of Justices
of the Peace. Their jurisdiction extended to civil matters of small
importance and to petty criminal offenses. They were not permanent,
being more in the nature of referees or arbitrators, and sat only when
occasion required. Their sessions were public and were held in the open
air under trees, or at the city gate.
Thus much for the judicial system of courts and judges among the ancient
Hebrews. It was simple in the extreme, democratic to the core, and seems
to have been thoroughly reliable and effective. It was founded upon
universal suffrage, subject only to the general supervision and
occasional appointments of the Great Sanhedrin. The judges were ever in
touch with the sympathies and the best interests of the people.
_Peculiarities of the Hebrew System._--Certain very striking
peculiarities marked the Hebrew system:
(1) There were no lawyers or advocates. These judicial disputants have
been known to every other system of enlightened jurisprudence. But there
were no Ciceros, Erskines, Choates among the ancient Hebrews. The judges
were the defenders as well as the judges of the accused. It may be
easily read between the lines that the framers and builders of the
Hebrew judicial system regarded paid advocates as an abomination and a
nuisance. King Ferdinand, of Spain, seems to have had the Hebrew notion
when, more than a thousand years after Jerusalem fell, he sent out
colonists to the West Indies, with special instructions "that no lawyers
should be carried along, lest lawsuits should become ordinary
occurrences in the New World."[120] Ferdinand evidently agreed with
Plato that lawyers are the plague of the community.[121]
(2) There was no secret body, with the accusatory functions of the
modern Grand Jury, connected with the ancient Hebrew judicial system.
The witnesses were the accusers, and their testimony constituted both
the indictment and the evidence.
(3) There were no public prosecutors or State's attorneys known to the
Hebrew system. Here, again, the witnesses were the informants,
prosecutors, and, in capital cases, executioners of the accused.
(4) No court, among the ancient Hebrews, could consist of a single
judge. Three was the number of the lowest court; three-and-twenty, of
the next highest; and seventy-one, of the Great Sanhedrin at Jerusalem.
A single intelligence acting judicially would have been regarded as a
usurpation of divine prerogative. The basis of this peculiar Hebrew
notion is a single sentence from the Pirke Aboth, iv. 8: "Be not a sole
judge, for there is no sole judge but One."[122]
CHAPTER IV
HEBREW CRIMINAL LAW--WITNESSES AND EVIDENCE
_Competency.--The qualifications of a competent witness, under Hebrew
law, were almost identical with those of a qualified judge, mentioned in
a previous chapter. Self-evidently, all persons who were not
incompetent, were competent._
_Incompetency.--The following persons were incompetent to be witnesses:
Gentiles, women,[123] minors, slaves,[124] idiots and lunatics, deaf
mutes, blind men, gamblers, usurers, illiterate or immodest persons,
persons who had been convicted of irreligion or immorality, relatives by
affinity or consanguinity, and all persons directly interested in the
case._
The witness must have been a Hebrew, though the Talmud mentions cases in
which certain facts were allowed to stand proved upon statements "made
innocently" by a Gentile; that is, not as a witness in court.
Women were not permitted to be witnesses ordinarily, because of the
"levity and boldness of the sex."[125] In capital cases, they were not
allowed to testify against the accused, because the law required the
witnesses to become the executioners of the condemned man, and it was
not deemed proper to impose this solemn and awful duty upon the weaker
sex.
Puberty or adolescence marked the age which qualified a person to be a
witness in criminal cases; that is, the thirteenth year must have been
passed.
Immoral and irreligious persons were incompetent to testify. Such men
were termed "wicked" in reference to the law as laid down in Exodus
xxiii. 1: "Thou shalt not raise a false report: put not thine hand with
the wicked to be an unrighteous witness." Under the stigma of the
immoral and irreligious came dicers, usurers, pigeon fliers, and those
who traded in the fruits of the Sabbatical year. Maimonides also
mentions as incompetent "men who showed lack of self-respect by eating
on the street, walking about naked at their work, or living openly on
the charity of Gentiles."[126] Publicans--tax-gatherers--were usually
classed with heathens and sinners as being among the immoral and
irreligious. This class of persons were suspected by the Jews, not only
because they were regarded as the official representatives of the Roman
oppressors of Judea, but also because extortion and cruelty were
frequently practiced by them. Theocritus being asked which was the most
cruel of all beasts, replied: "Among the beasts of the wilderness, the
bear and the lion are the most cruel, but among the beasts of the city,
the Publican and the Parasite."[127]
The doctrine of interest as a disqualification to testify was carried to
the limit of declaring a person incompetent to be a witness when he was
the citizen of a town where claim of title to the public bath house or
the square was made, until he had first divested himself of all share in
the title to the litigated property.[128]
_Number Required to Convict.--Under Hebrew law, both Mosaic and
Talmudic, at least two witnesses were required to convict an accused
person. The prosecuting witness being included, three were necessary._
Concerning capital punishment, the Mosaic ordinance, referring to this
rule, runs thus:
At the mouth of _two_ witnesses, or _three_ witnesses, shall he
that is worthy of death be put to death; but at the mouth of _one_
witness he shall not be put to death.[129]
Whoso killeth any person, the murderer shall be put to death by the
mouth of witnesses; but _one_ witness shall not testify against any
person to cause him to die.[130]
From the Talmud we learn that this Mosaic provision was maintained with
scrupulous fidelity in the administration of justice throughout all the
years of Jewish nationality. It was a requirement of prudence and safety
which commends itself to every logician and legist. It is not necessary
to be a criminal lawyer of large experience to know that the blackest
falsehood can almost always secure at least one champion. Pliny, the
historian, knew this when he wrote: "_Nullum tam impudens mendacium est
quod teste careat._"[131]
The requirement of two witnesses was not, however, peculiar to the
jurisprudence of the Hebrews. Nearly every ancient code contained a
similar enactment. It was especially prominent in Roman law.[132] But it
can scarcely be found to-day in any modern legislation. In prosecutions
for the crimes of treason and perjury under the Common Law of England,
two witnesses were required; in almost all other cases, one positive
witness was sufficient.[133]
The American Constitution requires two witnesses to the same overt act,
to convict of treason.[134] And the penal laws of the majority of the
American States have provisions requiring at least two witnesses, or one
witness corroborated by circumstantial evidence, to establish guilt in
the prosecution of certain crimes; notably, the sexual crimes of rape
and seduction, the crime of perjury, as well as all crimes where it is
sought to convict upon the testimony of an accomplice.
More than one hundred years ago, Montesquieu boasted of such a
requirement in French law and declared that those laws which condemn a
man to death on the testimony of a single witness are fatal to
liberty.[135] The reason of the rule proclaimed by the great French
writer is the same as that put forth by the ancient Rabbins. It was
assumed that the defendant in a criminal case would plead not guilty and
deny the facts of the crime. His plea and denial would simply
counterbalance and destroy the testimony of a single witness swearing
for the commonwealth. The testimony of a third witness was, therefore,
indispensable to a decision. It may be objected that this rule was
absurd, since a conviction was impossible unless the State could produce
more witnesses than the accused. But we shall learn later that the
doctrine of sifting testimony and weighing the credibility of witnesses
did not obtain so strictly among the ancient Hebrew judges as it does in
cases of modern trial by jury under English and American law.
_Agreement of Witnesses.--The witnesses were required to agree in all
essential details; else, their testimony was invalid and had to be
rejected._
The Talmudic provision is: "If one witness contradicts another, the
testimony is not accepted."[136]
The illustration of the rule given by Maimonides, in his commentary on
this provision, is: "For instance, if one witness were to testify to
having seen an Israelite in the act of worshiping the sun, and another
to having seen the same man worshiping the moon, yet, although each of
the two facts proves clearly that the man had committed the horrible
crime of idolatry, the discrepancy in the statements of the witnesses
invalidates their testimony and the accused is free."[137]
This rule of strict agreement, it is supposed, extended, at first, only
to criminal cases, but it was undoubtedly afterwards applied to civil
causes as well. An eminent contributor to the "Jewish Encyclopedia"
says:
In civil cases, however, it is not necessary that the two witnesses
should agree very closely as to the time and place. Thus, if of two
witnesses to a loan one should say, "A lent B a jar of oil," the
other, "He lent him a jar of wine"; or, if one should say, "I was
present when the money was paid at Jerusalem," the other, "I saw it
paid at Hebron"; or, if one should say, "I saw it paid in the month
of Nisan," the other, "I saw it paid in Iyyar," their testimony
would be void. But if one says he saw it paid in the upper and the
other in the lower story; or if he says on the first of the month
and the other on the second of the month, such evidence is within
the limit of fair mistake and the testimony stands. Even less does
a disagreement as to circumstances other than time and place affect
the testimony; for instance, if one say the money is black from
usage, the other that it was new, this would be regarded as an
immaterial circumstance, and the testimony would stand. Where the
two witnesses vary only in the matter of quantity, the lesser
quantity is sufficiently proved.[138]
One of the strangest provisions of Hebrew law was the requirement that
the testimony of each witness to the transaction should cover the entire
case. This was a Talmudic rule resulting from Rabbinic construction of
the Mosaic ordinance, requiring at least two witnesses to establish a
crime. The doctors of the law construed the rule to mean that the
testimony of each witness was to be complete within itself and to extend
to the whole case. Hebrew law did not permit the use of circumstantial
evidence in criminal prosecutions. Only eyewitnesses of the crime were
competent. Under English and American law a crime may be proven by any
number of witnesses, each of whom testifies to a separate fact which
constitutes a link in the chain of circumstantial evidence. But this
method of proof was forbidden by both the Pentateuch and the Talmud.
Under Hebrew law the capital crime of kidnaping was made up of the two
elements of Abduction and Selling. The testimony of two witnesses--one
to the fact of Abduction, the other to the fact of Selling--was
insufficient to convict. Each had to testify to the facts of both
Abduction and Selling. This Talmudic rule of criminal procedure was
undoubtedly based upon a supreme regard for the sanctity of human life
and upon the fact that the Hebrews rejected circumstantial evidence
altogether in proving crime. The extreme of the rule is declared by
Mendelsohn when he says: "And even where there appeared a legal number
of duly qualified witnesses, the testimony was insufficient to convict,
unless they agreed not only with regard to the prisoner's offense, but
also with regard to the mode of committing it. Rabbinic law does not
subject a person to capital, nor even to corporal punishment, unless all
witnesses charge him with one and the same criminal act, their
statements fully agreeing in the main circumstances, and declaring that
they saw one another, while seeing him engaged in the crime."[139]
_No Oath Required.--An oath, in the modern sense, was never administered
to a Hebrew witness._
Testimony was given under the sanction of the Ninth Commandment: "Thou
shalt not bear false witness against thy neighbor." This solemn
prohibition of bearing false witness was regarded by both Moses and the
Talmudists as a sufficient safeguard against perjury. It was a settled
maxim of Talmudic law that: "Whosoever will not tell the truth without
an oath, would not scruple to assert falsehood with an oath." The
doctrine was carried still further by some of the Jewish philosophers
who declared that swearing was injurious in itself; and that he who
consents to swear should _ipso facto_ be suspected of lacking
credibility.[140]
In the place of an oath, the following solemn warning or adjuration was
administered to each witness in the presence of the entire court:
Forget not, O witness, that it is one thing to give evidence in a
trial as to money and another in a trial for life. In a money suit,
if thy witness-bearing shall do wrong, money may repair that wrong.
But in this trial for life, if thou sinnest, the blood of the
accused and the blood of his seed to the end of time shall be
imputed unto thee.... Therefore was Adam created one man and alone,
to teach thee that if any witness shall destroy one soul out of
Israel, he is held by the Scripture to be as if he had destroyed
the world; and he who saves one such soul to be as if he had saved
the world.... For a man from one signet ring may strike off many
impressions, and all of them shall be exactly alike. But He, the
King of the kings of kings, He the Holy and the Blessed, has struck
off from His type of the first man the forms of all men that shall
live, yet so that no one human being is wholly alike to any other.
Wherefore let us think and believe that the whole world is created
for a man such as he whose life hangs on thy words. But these ideas
must not deter thee from testifying to what thou actually knowest.
Scripture declares: "The witness who hath seen or known, and doth
not tell, shall bear his iniquity." Nor must ye scruple about
becoming the instrument of the alleged criminal's death. Remember
the Scriptural maxim: "In the destruction of the wicked, there is
joy."[141]
It will be observed that the two elements of this preliminary caution
were, first, a solemn warning against injustice to the accused through
false swearing and a reminder of the inevitable retribution of Heaven
upon the perjured swearer and his remote descendants; second, a pointed
admonition against timidity or fear in testifying.
Bound by this tremendous sanction, the Hebrew witness was prepared to
testify. The method was unique, but seems to have been thoroughly
effective. Students of law will not be struck by its peculiarity. They
are well aware that any plan or mode is legal and effective that binds
the conscience of the witness. Even under modern codes that impose an
oath, no fixed form is imperatively demanded. In King _v._ Morgan, I
Leach C. L. 54, a Mahometan was sworn upon the Koran; in Omychund _v._
Baker, I Atk. 21, a Gentoo was sworn by touching the foot of a Brahmin;
in Reg. _v._ Entrehman, I Car. & M. 248, a Chinese witness took an oath
by kneeling down and breaking a saucer, the oath being administered
through an interpreter in these words: "You shall tell the truth, the
whole truth; the saucer is cracked, and if you do not tell the truth,
your soul will be cracked like the saucer."
_Examination of Witnesses._--As an act of caution against the admission
of irrelevant testimony, and as a means of placing before the entire
court, in the first instance, only such evidence as was deemed strictly
legal, a preliminary examination of witnesses was conducted in private
by a special committee of the Sanhedrin appointed for that purpose. All
irrelevant testimony developed at this private examination was
immediately declared inadmissible and was cast aside. The necessary
result of this most sensible proceeding was the discovery, in advance,
of discrepancies in the statements of witnesses and the eradication of
all illegal testimony. The full court sitting in regular session were
not, therefore, exposed to the danger of being prejudiced by the recital
of facts that had no legal connection with the case. Modern jurists
might easily learn something from the ancient Hebrews in this regard.
Every sensible lawyer is perfectly well aware of the absurdity and
injustice of the modern method of criminal procedure in allowing skilled
and designing attorneys to propose certain kinds of irrelevant testimony
in the presence of the jury, knowing very well that it will be overruled
by the court. These attorneys frequently deliberately draw out such
testimony from the witness with the expectation and understanding that
it will be ordered stricken out. The rule of practice that allows
incompetent testimony to be temporarily introduced upon a promise that a
foundation will be laid or relevancy shown, is abortive instead of
productive of justice. The mere clerical act of striking out incompetent
testimony does not, as a matter of fact, remove the impression of
prejudice from the brain of the judge or juror. The ancient Sanhedrists
were men of brilliant education and superior natural endowments. They
were trained in powers of logical analysis, and yet they were unwilling
to trust themselves with the possession of prejudicial facts arising
from incompetent testimony. It is respectfully submitted that the modern
average juror, whose mind is usually undisciplined in logic and legal
matters, is not able to sift and disentangle the relevant from the
irrelevant in the record of a civil or criminal trial of two or more
weeks' duration. Theoretically, he is; but practically, he is not. Every
impression, good or bad, legal or illegal, received at the trial,
affects his judgment and enters into the general summary of the case in
reaching a verdict.
_Separation of Witnesses.--The witnesses were required to give their
testimony separately and always in the presence of the accused._
Daniel said to the people concerning the two old men who testified
against Susanna: "_Separate_ them, and I will examine them."[142]
By this was meant that witnesses could not be examined until they had
been separated in conformity with law. Under modern practice in most
jurisdictions, witnesses may be separated and examined one at a time out
of the presence of each other. The rule of separation is, however,
generally optional with the litigant and discretionary with the court;
the ruling of the court being usually reversed only in case of abuse of
discretion. But among the Hebrews the requirement was mandatory and
imperative. It had to be observed in every case.
_Mode of Examination of Witnesses._--The mode employed by the Hebrew
judges in examining witnesses is without a precedent or parallel in the
jurisprudence of the world. Two distinct sets of questions constituted
the examination. The first set consisted of a series of interrogations
relating to the _time_ and _place_ of the alleged crime. These questions
were prescribed by law and could not be varied in the slightest. The
technical name applied to the first set of questions was Hakiroth. The
second set was termed Bedikoth[143] and included all interrogations
touching the investigation of relevant circumstances and corroborative
facts surrounding the case. The following seven questions, constituting
the Hakiroth, the first set of questions, were propounded to each
witness: "Was it during a year of jubilee? Was it in an ordinary year?
In what month? On what day of the month? At what hour? In what place? Do
you identify this person?"[144]
These seven questions were framed and applied in conformity with a
fundamental principle of the Hebrew law of evidence that the testimony
of any witness, if false, should admit of being impeached and
overthrown by proof of an _alibi_ against the witness. It seems, indeed,
that proof of an _alibi_ against the witness was the only method of
impeachment known to Hebrew law. It may be readily seen that the only
statements capable of being thus contradicted were confined to those
relating to the details of _time_ and _place_. To illustrate: Suppose
that two witnesses had testified that the alleged crime was committed in
a certain town at a certain hour; suppose that it subsequently appeared
in evidence that, at the stated time, one or both these witnesses were
in a neighboring town. In such a case, the witness or witnesses stood
impeached, their testimony was overthrown and they, themselves, became
subject to the pains and penalties of perjury.
The failure of any witness to answer satisfactorily any of the seven
questions above mentioned entitled the accused to immediate acquittal.
Any material disagreement between two or more witnesses required by the
law in answer to any one of these questions, likewise entitled the
prisoner to immediate discharge. These seven questions seem to have been
framed not so much to develop truthful testimony and to promote the ends
of justice from the standpoint of the State as to enable the defendant
to attack and destroy the testimony of hostile witnesses. The rule and
the reason thereof are thus clearly and succinctly stated by Mendelsohn:
The several particulars referring to time and place must be
furnished with the greatest possible precision and certainty, and
that by the whole party of witnesses. The slightest disagreement
on the part of the witnesses in regard to any one of these
particulars invalidates the entire testimony. Even where a number
of witnesses greater than that required by law, as three, appear,
and two agree on every point, but the third differs from them as to
more than one day, or more than one hour in the day, the whole
testimony is invalidated. For time and place are the only points
which affect the person of the witness himself; he not being able
to be at more than one spot at any one time; time and place are,
accordingly, the only grounds on which the witness may be confuted
and duly punished.
The second set of questions, termed the Bedikoth, embraced all matters
not brought out by the Hakiroth, such as would form the basis of
legitimate modern direct or cross examination. The following kinds of
evidence, however, were not admissible under either set of questions:
Evidence of character, good or bad; previous convictions of the accused;
and evidence as to the prisoner's antecedents. Such matters were not
relevant, under Hebrew law, and could not be urged against the
prisoner.[145]
_False Witnesses.--Hebrew law provided that false witnesses should
suffer the penalty provided for the commission of the crime which they
sought by their testimony to fix upon the accused._
The Scriptural authority for this rule is the following:
"And the judges shall make diligent inquisition; and, behold, if
the witness be a false witness and hath testified falsely against
his brother, then shall ye do unto him as he had thought to do unto
his brother.
... And thine eye shall not pity, but life shall go for life, eye
for eye, tooth for tooth, hand for hand, foot for foot."[146]
"And they arose against the two elders, for Daniel had convicted
them of false witness, by their own mouth; and according to the law
of Moses, they did unto them in such a sort as they maliciously
intended to do their neighbor; and they put them to death."[147]
_The Accused as Witness.--The accused was never compelled, under
Hebrew law, to testify against himself; but was permitted and
encouraged to offer testimony in his own behalf. His confession of
guilt was accepted in evidence and considered in connection with
other facts of the case, but was never permitted, standing alone,
to form the basis of a conviction._
The following is the commentary of Maimonides on this rule of law:
We have it as a fundamental principle of our jurisprudence that no
one can bring an accusation against himself. Should a man make a
confession of guilt before a legally constituted tribunal, such
confession is not to be used against him, unless properly attested
by two other witnesses. It is, however, well to remark that the
death sentence issued against Achan was an exceptional case,
brought about by the nature of the circumstances attending it, for
our law never condemns on the single confession of an accused
party.[148]
It is needless to suggest that the accused was never put under oath. His
position in this regard was exactly the same as that of any other Hebrew
witness. A special reason assigned for not swearing the accused is that
offered in the celebrated maxim: "In most men religion is silent when
interest speaks." Again, the inducement to perjury was so great that it
was thought imprudent to allow the accused to confess under the
solemnity of an oath.
The principle of law which rejects a bare confession of guilt as a basis
of criminal conviction is one of the most merciful and benign known to
jurisprudence. It is intended to protect the commonwealth against
perjury and deception on the part of the accused. It is also intended to
protect the prisoner against ignorance and rashness. It is a well-known
fact that the masses of mankind are ignorant of law, both civil and
criminal. Not one in a thousand in the most enlightened commonwealths
can define successfully the elements of the crimes of the state of which
he is a citizen. By refusing to allow an uncorroborated confession to be
made the basis of a conviction, the State simply throws the mantle of
charity and protection around the ignorance of the prisoner who
confesses. It is also well known that men will frequently confess guilt
when they are not guilty; sometimes, when they are even ignorant of the
facts constituting the offense. This is one of the strangest things
known to psychology and mental philosophy.[149] It is derived from the
well-known and universally recognized weakness of the human will when
confronted with a charge that threatens to blight and destroy life and
character at a single blow. A celebrated modern writer, while
discussing this rule of Hebrew law, wrote the following observations
upon the origin and motive of confession of guilt under criminal
charges:
The confession of the accused made no exception to the rule,
showing how a confession could be made the result of weakness, or
folly, or of interest--yes, even of interest. Some homicide on one
occasion confessed himself to be guilty of robbery or arson in
order to obtain proof of his innocence of some greater crime which
he had committed at the same time; a husband persisted in declaring
himself guilty of outrage upon a woman, really committed by some
unknown person, in order that, by being sentenced on this account,
he might prove his marital efficiency, which had been disputed by
his wife, who was contemplating steps to annul her marriage. Some
weak-minded people, unable to support the torture of a harassing
examination, and eager to regain their liberty, make a full
confession, accusing themselves in order not to be indicted, like
those persons who, crossing a river on a plank bridge, throw
themselves, through nervousness, into the rushing water, in order
not to fall in. Fools, from want of responsibility, or through a
boastful nature, accept, affirm, or confess everything of which
they know nothing.[150]
The reasons above stated lie at the foundation of all modern provisions
framed for the protection of the accused against precipitate
self-condemnation. But, strange to say, these reasons were not urged by
the framers or interpreters of Hebrew law. The explanation offered by
the Talmud was simply this: "He is his own kin"; and, as we have seen,
relatives were never permitted to be witnesses. A modern Jewish writer
has assigned the following reason for the rule forbidding a confession
to form the basis of a conviction: that, if the prisoner were innocent,
he should not be permitted to incriminate himself by a false confession;
if he were guilty, he was a wicked person, and, therefore, incompetent
to testify under Hebrew law.[151] This rule was not enforced, however,
against the defendant when testifying in his own behalf; an additional
proof of the merciful regard of Hebrew law for the unfortunate position
of a human being charged with crime. His testimony, though self-serving,
was given due weight when urged in his own defense. Little attention was
paid to it when he testified against himself.
_Relevancy of Hebrew Evidence.--Hearsay evidence was irrelevant under
Hebrew law._ "Hearsay evidence was barred equally in civil as in
criminal cases, no matter how strongly the witness might believe in what
he heard and however worthy and numerous were his informants."[152]
_Circumstantial evidence was irrelevant under Hebrew law._ "The sages
had very little more confidence in circumstantial evidence given for the
purpose of 'taking money out of' the defendant's pocket, than in that
given for the purpose of inflicting the penalty of death or stripes.
Ket. ii. 10 has been cited, according to which a witness may testify
that, when a boy, he saw a woman walk about in maidenly attire; the
object being to prove that she married as a maiden, not as a widow, and
is therefore entitled to a greater sum for her jointure. In discussing
this clause, the Talmud remarks that this is only arguing from the
majority of cases; for though in most cases those wearing maidens'
attire are not widows, occasionally they are; and money ought not to be
taken out of a man's pocket on reasoning from the greater number of
cases. In fact, circumstantial evidence was generally rejected."[153]
There were occasional exceptions to the rule in the administration of
Hebrew civil law, but none in criminal law. In criminal cases no Hebrew
prisoner could be convicted upon circumstantial evidence. Every link in
the chain of testimony had to be forged by the direct evidence of at
least two competent witnesses; else the accused was acquitted and
discharged.
_Written, or documentary evidence, was not relevant, under Hebrew law,
in criminal prosecution._ The reason of this rule was derived from a
literal interpretation of the Mosaic ordinance: "Whoso killeth any
person, the murderer shall be put to death by the _mouth of
witnesses_."[154] The expression, "mouth of witnesses," was construed by
the interpreters of the law to require oral testimony and to exclude
writing in all criminal prosecutions.
_Kinds of Oral Testimony._--Hebrew oral testimony is divided by the
Mishna into three leading classes:[155]
(1) Vain testimony.
(2) Standing testimony.
(3) Adequate testimony.
"Vain testimony" seems to have been wholly immaterial and irrelevant. It
was not even conditionally admitted, but was instantly and permanently
rejected. The New Testament seems to indicate that such testimony was
rendered against Jesus by the "many false witnesses" who first came, and
that testimony was rejected.
"Standing testimony" seems to have been conditionally admitted and to
have been allowed to remain in evidence until it was properly confirmed
by and joined to other evidence which the law required. It was not
valid, however, until so connected and confirmed. We must remember that
at least two witnesses, agreeing in all essential details, were needed,
under Hebrew law, to convict a prisoner. It is evident then that the
testimony of the first witness against the accused was necessarily
regarded as "standing testimony," until the second or confirming
witness, which the law required, had testified. This testimony is also
referred to in the New Testament when it is said that: "At the last,
came two false witnesses, And said, This fellow said, I am able to
destroy the temple of God and to build it in three days."[156] The
testimony of the first of these witnesses was doubtless allowed to stand
until it was shown that the second witness did not render testimony in
agreement with it. Contradictory testimony was thrown out under Hebrew
criminal procedure; and this was done regardless of the number of
witnesses who testified against the accused. It seems that a rigid
application of the principle of exclusion based upon contradictory
statements would have shut out the testimony of any number of agreeing
witnesses, if said testimony had been contradicted in a radical and
material way by even a single witness. The sifting of evidence and the
weighing of the credibility of witnesses, which is the peculiar
prerogative of the modern jury, were no part of the duties of the
ancient Sanhedrists. The testimony of all the witnesses against the
accused had to agree in all material respects, else it was wholly
rejected. Now it necessarily follows that all testimony against a
prisoner was of the "standing" or provisional kind until the last
witness had testified, and it was found that the evidence in its
entirety was in legal agreement. Mark, using the almost exact technical
expression of the law, tells us, concerning the false testimony against
Jesus, that "their witness agreed not together."[157] This disagreement
caused the "standing testimony" of the first witness to fall and the
charge of threatening or attempting to destroy the Temple was abandoned,
as we shall see in a later part of this work.
"Adequate testimony," under Hebrew criminal procedure, was evidence that
was competent, material, and in legal agreement. When two or more
witnesses, being the entire number, against the accused agreed in all
essential details, their testimony was considered adequate, and if the
judges believed it to be true they based a conviction upon it.
_Antecedent Warning._--It is deemed appropriate in this chapter to call
attention to and briefly discuss a very striking peculiarity of the law
of evidence under Hebrew criminal procedure. In the chapter on Mosaic
and Talmudic law, reference was made to the celebrated proviso, called
"Antecedent Warning." This proviso was unknown to the Mosaic Code, being
a creation of Talmudic law, and is without a parallel in the
jurisprudence of the world. Briefly stated, Antecedent Warning, under
Hebrew law, meant simply this: That no person charged with crime
involving life and death, or even corporal punishment, could be
convicted, unless it was shown by competent testimony that immediately
before the commission of the crime the offender was warned that what he
was about to do was a crime, and that a certain penalty was attached
thereto. The warning was not effective if any time elapsed between the
admonition and the commission of the offense. Furthermore, the warning
was of no force unless it was shown that the alleged criminal had duly
acknowledged it and had expressed a willingness to suffer corporal
punishment or to die for the act. It must have been shown that, having
received the warning, the would-be offender turned to his monitor and
said, "I am very well aware of the nature of the act I am about to
commit, of the rules of law applicable thereto, and of the inevitable
consequences of my misdeed"--else the court could not consider the
condition complied with.
This peculiar proviso seems to have been intended to serve three
distinct purposes: (1) To protect the would-be offender against his own
ignorance and rashness and to prevent the commission of crime by a
timely warning; (2) to aid in establishing guilty intention, that is,
criminal intent, at the trial of the prisoner, after the commission of
the offense; (3) to enable the judges to determine the exact penalty to
assess. The first two purposes are self-evident. The third merits a
brief consideration. To complete the warning, it was essential that the
offender be told the exact penalty attached to the crime which he was
about to commit; whether the punishment was capital or corporal, and the
exact kind, if capital; that is, whether beheading, burning, stoning, or
strangling. Now, it often happened that two crimes were committed by the
same person in one day; the penalty for one of which being flagellation
and the other death. And it sometimes happened that two different crimes
were the result of one criminal transaction. In such a case, the nature
of the Antecedent Warning would guide the judges in decreeing
punishment. To illustrate: The Mosaic Code forbids the killing of either
a cow or a ewe "and her young both in one day";[158] and a violation of
this prohibition, according to Rabbinic law, entails the punishment of
flagellation. Another Mosaic ordinance imposes the penalty of death on
the Jewish idolater.[159] Now, it might have happened that the last two
offenses mentioned were committed by the same person at the same time,
as when an Israelite slaughtered a ewe and her young and sacrificed them
as an offering to an idol. The question would at once arise: Which
penalty should be assessed, death for idolatry, or flagellation for
killing the ewe and her young both on the same day? Here, the nature of
the Warning would determine. If the prisoner had been told that
flagellation would be the punishment, then stripes were administered. If
he had been warned that death was the penalty, then capital punishment
was meted out to him. If the caution had included both death and
flagellation, then death would have been administered, because of the
enormity of the crime of idolatry and for the reason that all lesser
punishments are merged in death.
Another illustration of the third purpose above mentioned, that is, to
enable the judges to determine the exact punishment to administer, is
this: The ancient Nazarites made solemn vows of abstemiousness.[160] And
when any Israelite took the Nazarite vow and violated it, he subjected
himself to the penalty of flagellation if he drank a certain measure (¼
log) of wine. If he drank several such measures in succession, the
question would arise how he was to be punished. Again, the antecedent
caution would decide. If the testimony showed that he had received due
warning before each drink, then he was punished for each drink
separately. If he had been admonished only once, he was punished only
once for the whole debauch.[161]
The enforcement of this proviso established a rule of criminal procedure
peculiar to the Hebrews, and recognized by no other nation. Such a
requirement seems to be utterly subversive of the celebrated maxim that
has found place in every other enlightened system of law: _Ignorantia
juris, quod quisque tenetur scire, neminem excusat_. Among modern
civilized nations, ignorance or mistake of fact in criminal law, as
well as ignorance or mistake of the meaning and effect of civil or
private law, has sometimes been permitted to operate as an excuse in
favor of the victim of the ignorance or mistake; but ignorance of the
criminal or public law has never been permitted to be pleaded as a
defense to an indictment for crime. Such a plea would threaten the very
existence of the state by rendering the proof of crime and the
conviction of criminals impossible.
Other reasons besides those assigned above have been advanced to explain
the invention of such a proviso by the Talmudists. None of them is
entirely satisfactory. Rabbinowicz has urged with great force that the
enactment was the offspring of a constantly increasing tendency on the
part of the framers of the Talmud to mitigate the rigors of the Mosaic
Code, and to abolish altogether the punishment of death by making the
conviction of criminals practically impossible.[162] But this view has
been ably and probably successfully combated by Benny and others. To say
the least, it was a senseless provision when viewed from the standpoint
of the state in maintaining order and preserving the commonwealth. The
Rabbins framed several exceptions to its operation which were doubtless
designed to stay the progress of certain forms of crime and to preserve
the state. The false witness was excluded from the benefit of this
proviso, as were also the instigator to idolatry and the burglar. The
false witness was denied the benefit because of the impossibility of
foreseeing that he would swear falsely and of forewarning him; the
idolater was excepted because of the heinousness of the crime of
idolatry under a theocratic commonwealth; and the burglar was denied the
benefit of the caution for the very peculiar reason that the "breaking
in," while committing the crime of burglary, was sufficient
warning.[163]
Such a rule is utterly without foundation in logic or reason from the
simple fact that crime in every age has been committed with every
circumstance of caution and concealment that criminal ingenuity could
devise; usually under the cover of night, often with a mask, frequently
by the aid of accomplices to give notice of the appearance of the
officers of the law, and nearly always with subsequent attempts to wipe
out evidences of the commission of the offense. To require a preliminary
caution, such as the Antecedent Warning of the Jews, was to handicap the
state most seriously and to render almost impossible the apprehension
and punishment of public malefactors.
CHAPTER V
HEBREW CRIMINAL LAW--MODE OF TRIAL AND EXECUTION IN CAPITAL CASES
The administration of Hebrew criminal law was marked by lofty conception
of right and wrong, and was pervaded by a noble sentiment of justice and
humanity. From the framing of the Decalogue to the latest years of
Jewish nationality, each succeeding generation witnessed some humane and
merciful modification of existing rules. Talmudic interpretation
invented a series or collection of sayings that gave form and character
to the whole body of later Hebrew law. These maxims were intended to
mitigate the rigors of the Mosaic Code and to establish safeguards
against negligence or injustice to the defendant in criminal trials.
Indeed, every possible precaution was taken to render impossible the
wrongful conviction of an accused person. The student of Hebrew law is
at times astonished by the excessive caution inculcated in criminal
procedure. Certain cautionary rules are no less than pedantic, and may
be justly and aptly styled Judaical. The judges leaned always to the
side of the defendant and gave him the advantage of every possible
doubt. They went a step farther and sought pretext after pretext that
would result in an acquittal. A sense of awful responsibility weighed
upon the hearts and consciences of the judges. The services of the
synagogue were not conducted with deeper fervor or greater religious
solemnity than were the proceedings of a capital trial in the great
Judgment Hall of the Sanhedrin. Certain sacred maxims flamed forever
like beacon lights along the pathway of the members of the court during
the solemn deliberations. "A judge," says the Talmud, "should always
consider that a sword threatens him from above, and destruction yawns at
his feet." The ancient adage, "the pen of the law fears the thunder of
Heaven," though of Chinese origin, is Hebraic in spirit. "Thou shalt do
no unrighteousness in judgment" was the leading aphorism of Hebrew
jurisprudence. Among the earliest traditions of the Fathers, we read
this maxim: "When a judge decides not according to truth, he makes the
majesty of God to depart from Israel. But if he judges according to the
truth, were it only for one hour, it is as if he established the whole
world, for it is in judgment that the divine presence in Israel has its
habitation." Hebrew horror of capital punishment and dread of taking
human life are well expressed in the celebrated maxim of the Mishna:
"The Sanhedrin, which so often as once in seven years, condemns a man to
death, is a slaughter-house."[164] And more striking and startling still
is the terrible sentence of Rabbi Meir: "What doth God say (if one may
speak of God after the manner of men) when a malefactor suffers the
anguish due to his crime? He says, _My head and my limbs are pained_.
And if he so speaks of the suffering even of the guilty, what must he
utter when the righteous is condemned?" The whole spirit of Talmudic
caution is well illustrated by the principal rule of the Pirke Aboth,
which says: "Be cautious and slow in judgment, send forth many
disciples, and _make a fence round the law_."[165]
In addition to the maxims above mentioned, which were more religious
than legal, four cardinal rules of criminal procedure--"strictness in
the accusation, publicity in the discussion, full freedom granted
to the accused, and assurance against all dangers or errors of
testimony"[166]--molded the judgment and guided the consciences of
Hebrew judges. These sayings of the Fathers and maxims of the law were
the touchstones of all their judicial inquiries and meditations at the
trial of capital cases. With prayer in their hearts and these maxims
upon their lips, they applied themselves to the solemn duties of their
office.
A most interesting passage in the Mishna draws a striking contrast
between capital trials and those involving questions of money only. The
relevancy of the passage to this chapter is so great that it is deemed
best to quote it entire:
Money trials and trials for life have the same rule of inquiry and
investigation. But they differ in procedure in the following
points: The former require only three, the latter three-and-twenty
judges.
In the former it matters not on which side the judges speak who
give the first opinions; in the latter, those who are in favor of
acquittal must speak first.
In the former, a majority of one is always enough; in the latter, a
majority of one is enough to acquit, but it requires a majority of
two to condemn.
In the former, a decision may be quashed on review (for error), no
matter which way it has gone; in the latter, a condemnation may be
quashed, but not an acquittal.
In the former, disciples of the law present in the court may speak
(as assessors) on either side; in the latter, they may speak in
favor of the accused, but not against him.
In the former, a judge who has indicated his opinion, no matter on
which side, may change his mind; in the latter, he who has given
his voice for acquittal may not change.
The former (money trials) are commenced only in the daytime, but
may be concluded after nightfall; the latter (capital trials) are
commenced only in the daytime, and must also be concluded during
the day.
The former may be concluded by acquittal or condemnation on the day
on which they have begun; the latter may be concluded on that day
if there is a sentence of acquittal, but must be postponed to a
second day if there is to be a condemnation. And for this reason
capital trials are not held on the day before a Sabbath or a feast
day.[167]
The principal features of a Hebrew capital trial before the Great
Sanhedrin were: (1) The Morning Sacrifice; (2) the Assembling of the
Judges in the Lishkath haggazith, or the Hall of Hewn Stones; (3) the
Examination of Witnesses; (4) the Debates and Balloting of the Judges on
the guilt or the innocence of the accused. These successive steps will
be briefly considered in this chapter.
_The Morning Sacrifice._--It is not positively known what legal
connection, if any, the morning sacrifice had with the trial of a
capital case before the Great Sanhedrin at Jerusalem. Several writers
contend that there was no essential legal connection; that the sacrifice
was offered at the break of day whether a capital case was to be tried
or not; and that the court was not dependent upon this religious
observance for jurisdiction in the trial of criminal cases. Other
writers hold opposite views, and contend that the morning sacrifice was
essential to give jurisdiction to the court. MM. Lémann consider it an
error in the trial of Jesus that the morning sacrifice was not offered
before the commencement of proceedings.[168] Certain passages from the
Mishna very strongly support this second view: that the court could not
legally convene until the morning sacrifice had been offered. "The
Sanhedrin sat from the close of the morning sacrifice to the time of the
evening sacrifice."[169] ... "Since the morning sacrifice was offered at
the break of day, it was hardly possible for the Sanhedrin to assemble
until an hour after that time."[170] These passages seem to indicate
that the morning sacrifice was necessary before the court could legally
convene. This question will be found more fully discussed under Point V
of the Brief in this volume. The method of offering the morning
sacrifice was as judicial in its precision as it was religious in its
solemnity.
_The Assembling of the Judges._--At the close of the morning sacrifice,
the members of the court entered the judgment hall in solemn procession.
They took their seats, "turbaned, on cushions or pillows, in oriental
fashion, with crossed legs, and unshod feet, in a half-circle."[171] The
high priest sat in the center with the other members of the court to the
right and left of him. "His head was crowned with a turban of blue
inwrought with gold. On his bosom hung the priestly breastplate, in
which glittered twelve precious stones, emblems of the twelve tribes of
Israel. A flowing robe of blue, gathered about his waist by a girdle of
purple, scarlet, and gold embroidery, enveloped his person and set off
the pure white linen of his capacious sleeves. The buttons of this
costly robe were onyx stones. His slippered feet were half concealed
beneath the long fringe of his pontifical vestments, which were
curiously embroidered with pomegranates in gold and scarlet and crimson.
No Roman Catholic pontiff ever wore robes more resplendent than those in
which the high priest was attired on public and state occasions.
Immediately before him sat the scribes or clerks of the court. The one
on his left hand wrote down whatever testimony was adduced against the
accused; what votes were cast for his condemnation. The one on the right
transcribed what appeared in his favor."[172]
According to most writers, including Dr. Lyman Abbott, only two scribes
were present having seats at each end of the semicircle. According to
Benny, however, "three scribes were present; one was seated on the
right, one on the left, the third in the center of the hall. The first
recorded the names of the judges who voted for the acquittal of the
accused and the arguments upon which the acquittal was grounded. The
second noted the names of such as decided to condemn the prisoner and
the reasons upon which the conviction was based. The third kept an
account of both the preceding, so as to be able at any time to supply
omissions or check inaccuracies in the memoranda of his brother
reporters."
The prisoner was placed in front of the high priest, in a conspicuous
position, where he could see all and could be seen by all.
Thus organized and arranged, the Sanhedrin began the work of the day.
_Examination of Witnesses._--The examination of witnesses, who were also
accusers, marked the beginning of proceedings. It is doubtful if the
indictment against criminals was in writing. The first witness who was
to testify was led into an adjoining room and solemnly warned. He was
asked questions similar to the following: Is it not probable that your
belief in the prisoner's guilt is derived from hearsay or circumstantial
evidence? In forming your opinions concerning the guilt of the accused,
have you or not been influenced by the remarks of persons whom you
regard as reputable and trustworthy? Are you aware that you will be
submitted to a most searching examination? Are you acquainted with the
penalty attached to the crime of perjury?
After this preliminary warning, conveyed in these questions, had been
given, the most learned and venerable of the judges administered to the
witness the following impressive adjuration:
Forget not, O witness, that it is one thing to give evidence in a
trial as to money, and another in a trial for life. In a money
suit, if thy witness-bearing shall do wrong, money may repair that
wrong. But in this trial for life, if thou sinnest, the blood of
the accused, and the blood of his seed to the end of time, shall be
imputed unto thee.... Therefore was Adam created one man and alone,
to teach thee that if any witness shall destroy one soul out of
Israel, he is held by the Scripture to be as if he had destroyed
the world; and he who saves one such soul to be as if he had saved
the world.... For a man from one signet-ring may strike off many
impressions, and all of them shall be exactly alike. But He, the
King of the kings of kings, He the Holy and the Blessed, has struck
off from His type of the first man the forms of all men that shall
live; yet so, that no one human being is wholly alike to any other.
Wherefore let us think and believe that the whole world is created
for a man such as he whose life hangs on thy words. But these ideas
must not deter you from testifying from what you actually know.
Scripture declares: "The witness who hath seen or known, and doth
not tell, shall bear his iniquity." Nor must ye scruple about
becoming the instrument of the alleged criminal's death. Remember
the Scriptural maxim: "In the destruction of the wicked, there is
joy."
At the close of this solemn exhortation, the examination of the witness
commenced. The Hakiroth, seven questions prescribed by law, touching the
identity of the prisoner and fixing the elements of time and place, were
asked. They were as follows: Was it during a year of jubilee? Was it an
ordinary year? In what month? On what day of the month? At what hour?
In what place? Do you identify this person?
These questions being satisfactorily answered, the next step was a rigid
examination into the facts and circumstances attending the commission of
the crime and the connection of the accused therewith. This process of
examination and cross-examination was termed the Bedikoth and embraced
all questions not included in the Hakiroth which tended to establish the
guilt or innocence of the prisoner at the bar.
When the witnesses for the Commonwealth of Israel had been examined,
witnesses for the defendant were heard. The accused was also urged to
say anything he wished in his own behalf. As we have before pointed out,
the Hakiroth questions as to time and place could be rebutted only by
establishing an alibi against the witnesses for the state. If such an
alibi was proved, the defendant was acquitted and at once discharged. A
contributor to the "Jewish Encyclopedia," discussing this point of
procedure, says: "It has been shown under Alibi how a 'set' of witnesses
may be convicted as 'plotters' by another set or sets proving an alibi
on them. But the opposite party may prove an alibi on the convicting set
or in some other way show that the facts testified to by the first set
were impossible or untrue. Under such circumstances, a modern judge or
jury would weigh the credibility of the witnesses and the probability of
their stories and decide between them accordingly. The sages did not
trust themselves or their successors with this discretion. If there were
no indicia or fraud, they held that as some one was evidently lying
they could not decide which of them it was, and that there was no
evidence on the point."[173] The result was an acquittal.
If material contradictions in the testimony of the witnesses were shown
by the Bedikoth, the trial was at once terminated and the accused was
free. The failure of any witness to answer satisfactorily any of the
seven questions above mentioned entitled the accused to immediate
acquittal. Any material disagreement between the two or more witnesses
required by the law in answer to any of these questions likewise
entitled the prisoner to an immediate discharge. If the prosecuting
witnesses relied upon documentary, circumstantial or hearsay evidence to
convict, their testimony was at once rejected and the defendant was
released.
But if the accused failed to establish an alibi against the prosecuting
witnesses in the matter of the Hakiroth; and if the Bedikoth developed
evidence fairly consistent and uncontradictory; and if the testimony of
the witnesses was purely oral, that is, was not documentary, hearsay or
circumstantial, then there was legally admissible evidence to lay before
the Sanhedrin. The competent witnesses who could render relevant
testimony were then led, one at a time, before the general body and
required to testify.
_The Debates and Balloting of the Judges._--All the evidence, pro and
con, having been adduced, the tribunal began a full discussion of the
case, preliminary to casting ballots. Arguments could be begun only on
behalf of the accused. Nothing was permitted to be said against him
until one of the judges had urged something in his behalf, and had said:
"As I view the matter, and according to such and such evidence, it seems
to me that the prisoner should be acquitted." The discussion became
general for and against the accused. The entire record was then
overhauled. Each item of evidence was carefully considered and subjected
to the minutest criticism. Contradictions were noted and extenuating
facts pleaded. If one of the disciples occupying one of the three rows
of seats could offer any cogent or valid reason why the prisoner should
not be convicted, he was invited to take his seat among the judges, and
was regarded as a member of the court during the remainder of the day.
If his argument resulted in the acquittal of the accused and saved a
human life he was made a permanent member of the court. On the other
hand, if one of the disciples had anything to say that would tend to
injure the defendant he was not permitted to raise his voice.
When the entire case had been exhaustively discussed, the argument was
closed and the balloting on the guilt or innocence of the accused
commenced. The scribes were in readiness to record the votes and note
the reasons assigned therefor. The youngest members of the tribunal were
required to vote first, in order that they might not be unduly
influenced by the example of their seniors in age and authority. The
high priest, who was generally president of the Sanhedrin, addressed a
gentle admonition to the youngest member, who was never less than forty
years of age, to render a free and untrammeled verdict, and not to be
awed or influenced by the patriarchs of the court. This admonition was
repeated in the case of each youthful member of the tribunal. When the
balloting commenced, each judge arose in his place and voted; at the
same time making a short speech explanatory of his ballot. To secure a
conviction it was not necessary that the members of the Sanhedrin should
be unanimous. Indeed a peculiar rule of Hebrew law provided that if the
verdict was instantaneous and unanimous it was invalid and could not
stand. If the prisoner had not a single friend in court, the element of
mercy was wanting in the verdict, said the ancient Hebrews, and the
proceedings were regarded in the light of conspiracy and mob violence. A
majority vote of at least two members was necessary to convict. A
majority vote of one in his favor would acquit. Any majority amounting
to two or more that did not reach unanimity was sufficient to condemn.
If the accused was tried before a Minor Sanhedrin of three-and-twenty
members or before the Great Sanhedrin with a bare quorum (twenty-three
members, the same number as the full membership of a Minor Sanhedrin), a
vote of thirteen members was necessary, in either case, to convict. If
eleven judges were for conviction and twelve for acquittal, the prisoner
was discharged at once; a majority of one vote being sufficient for that
purpose. If twelve were in favor of conviction and eleven for acquittal,
the condemnation of the accused was impossible; a majority of at least
two being required to condemn. According to some writers, an acquittal
was the result in such a case. According to others, in such a
contingency the following novel expedient was employed to reach a
verdict: From the first row of disciples two additional judges were
selected and added to the original twenty-three members. Balloting then
commenced anew. If the vote resulted in a majority of at least two
against the prisoner, he stood convicted. If not, two more disciples
were added from the first row in front and this process of increasing by
twos the number of the Sanhedrin was continued until the requisite
majority was secured. If it happened that the constant additions finally
raised the number to seventy-one, the membership of the Great Sanhedrin,
the process of increasing by twos was discontinued, and final balloting
then began. If thirty-six voted for conviction and thirty-five for
acquittal, the whole case was reargued for a reasonable time until one
of the thirty-six yielded and declared in favor of acquittal. In case
the thirty-six members persevered in their determination to convict, the
prisoner was discharged.
At any stage of the trial, from the beginning with the three-and-twenty
judges through all the successive additions of new members, a majority
vote of one or more in favor of the accused would acquit; a majority of
two or more, not amounting to unanimity, would convict.
In case of an acquittal the prisoner was immediately released and the
trial was closed. In the event of conviction sentence could not be
pronounced until the next afternoon and the session of the court was
accordingly adjourned until the following day. Upon adjournment the
members of the Sanhedrin with measured step and solemn mien left the
chamber in which the trial had been conducted. Outside the judgment
hall, in the open street, the judges formed themselves into groups or
knots of five or six to discuss the trial and to lament the awful
misfortune impending over Jerusalem; for such was the Hebrew conception
of the execution of a son of Israel. The nucleus of each group was
formed of elders of the Sanhedrin; the younger members came up from
behind, leaned over between the shoulders of the patriarchs, and
listened attentively and devoutly to what they were saying about the
case. Gradually the groups broke up and the judges linked arm in arm, by
twos, walked slowly homeward, still discussing the facts and arguments
adduced at the trial. Finally they parted and retired to their
respective homes. No heavy food, like meat, and no intoxicating
beverage, were taken for the remainder of the day or during the night.
Nothing was done that would incapacitate them for correct thinking. At
sunset they began to make calls upon each other for the purpose of
examining more carefully and debating more fully the issues of the case.
When these visits were concluded, in the early evening, each judge
retired to the privacy of his own home to sleep, meditate, and pray. At
the dawn of day, they arose and prepared to resume again the solemn
responsibilities of their office. The morning sacrifice was offered and
the judges again assembled at sunrise in the hall of justice. They
reseated themselves in the form of a semicircle; the prisoner was again
led to the bar of the court; the witnesses were again produced; and the
scribes, bringing with them the minutes of the former meeting, again
took seats in their accustomed places.
The second part of the trial then began. It must be remembered that
there were two trials of every Hebrew capital case. The second day was
not a trial _de novo_; but was a proceeding in the nature of an appeal
and was intended to accomplish a review of the proceedings of the
previous day. Additional testimony, however, which had been discovered
after the close of the first trial, might be introduced. But the record
of facts seems not to have been considered so important as the question
of the fixed opinions of the judges. Each member of the Sanhedrin was
required, on the second day, to vote again and to declare anew his
notions concerning the guilt or innocence of the accused. The statements
of each judge were carefully noted by the scribes and compared with his
statements at the previous day. If any judge voted for conviction at the
second trial and founded his judgment on reasons and arguments radically
different from those of the first day, his verdict was rejected. A
member who had voted for acquittal on the first day was not permitted to
change his vote for conviction on the second day. But one who had voted
for condemnation at the first trial, might, by giving valid reasons,
vote on the second day for acquittal.[174]
A most striking peculiarity of Hebrew law is to be noted in their method
of counting votes and arriving at sums total in favor of or against the
accused. Certain peculiar rules were to be strictly applied in
determining the ultimate result. When upon examination of the record it
was discovered that two or more judges had advanced identical arguments,
though each supported his contention by different Biblical citations,
their collective opinions were regarded as the common expression of a
single mind and all their votes were counted only as one. Father and
son, teacher and pupil, being members of the same court, counted also as
one, provided their votes and opinions were arrayed on the same side,
but not when they were placed in antagonism.[175]
When the balloting was complete the number for and against the prisoner
was again announced. If a majority of at least two votes were registered
against him he stood convicted a second time. But the humane and
indulgent spirit of Hebrew law continued to operate and deferred
immediate sentence. The judges continued to deliberate. No one thought
of quitting the judgment hall on the second day of the trial. No one ate
anything, no one drank anything on this second day; for the day that was
to condemn an Israelite to death was to be a fast day for those who
condemned him. It was to be a day of prayerful meditation. Ancient
maxims of the Fathers, framed for the protection of the accused, were
reconsidered. All the merciful tendencies of Talmudic interpretation
were invoked and pleaded by the judges, the defenders of the accused. It
was hoped that a few hours' time would discover facts favorable to the
doomed man. New arguments, it was thought, might be offered and new
witnesses might be forthcoming in his behalf. As they continued to
deliberate, the fatal hour approached. There was to be no thirty or
sixty days, as in America, between sentence and execution, during which
time the condemned man could make peace with God. The moment that saw
the judgment finally pronounced witnessed the beginning of its
execution. Sunset, Nature's symbol of the extinguishment of the light of
life, was the time fixed for both.
The death march and the final circumstances attending the execution of a
Hebrew prisoner are without parallel in the jurisprudence of the world.
As the culprit was led away to his doom, a man, carrying in his hand a
flag, was stationed at the entrance of the Sanhedrin Hall. A mounted
officer of the court followed the procession at a convenient distance
and kept his eyes constantly turned in the direction of the flag bearer
on the hill. A herald, carrying aloft a staff from which fluttered a
crimson banner, made proclamation to the gazing multitude along the way
that a human being was about to be executed. He cried aloud: "AB is to
be put to death on the testimony of CD and XY, on such and such a
charge. If any man knows anything favorable to the accused, in the name
of God let him come forth and speak, in order that the prisoner may be
led back to the Sanhedrin Hall to be again confronted and tried by his
judges."
If any witness, friend or stranger, came forth to furnish new evidence
in favor of the condemned man, the procession was halted and the
accused was led back to the Sanhedrin Chamber. If any member of the
court still sitting in the hall of judgment bethought himself of any new
argument in behalf of the accused that had not been offered at the
trial, he arose quickly in his place and stated it to his fellow-judges.
The flag at the gate was then waved and the mounted messenger, chosen
for such an emergency, saw it waving and galloped forward to stop the
execution.
The culprit himself could delay or prevent the accomplishment of the
death sentence if he could give to the Rabbins who escorted him any
valid reason why he should not be put to death. He was led back as often
as he gave any good excuse, not exceeding five times, the number
prescribed by law. If no new witnesses appeared and if the prisoner made
no further plea for life, the procession proceeded to within a short
distance of the place of execution. The convict was then exhorted to
declare himself guilty of the crime of which he was charged and to make
full confession of all his sins. He was told that a full confession
would entitle him to a happy existence beyond this life, since the flood
of death would wash away all stains of sin and cleanse the soul of all
the iniquities of existence in this world. If the condemned man still
refused to confess that he was guilty of the crime with which he was
charged, he was then urged to say: "May my death prove an atonement for
all my transgressions."
He was then led to the ground of execution. The death draught,
consisting of a mixture of frankincense and myrrh, poured into a cup of
vinegar or light wine, was then given him. Stupefaction followed,
rendering the culprit unconscious of his impending doom and insensible
to the agonies of death. In Jerusalem, this benumbing and stupefying
mixture was furnished by the Hebrew women, whose tender and merciful
regard for the wretched and unfortunate of earth has in all ages been a
striking characteristic of the sex. As soon as the draught had been
administered the execution took place. The prisoner was either stoned,
strangled, burned, or beheaded, according to the nature of his crime. In
case of blasphemy or idolatry the dead body was afterwards hung upon a
gallows until dusk. But ordinarily the corpse was immediately interred
after execution. On the outskirts of every town there were two
graveyards for criminals; in one of these those who had been burned or
stoned were buried; in the other were interred those who had been hanged
or beheaded. As soon as decomposition had taken place--that is, when the
flesh had decayed and fallen from the bones--the relatives were allowed
to remove the skeleton and to deposit it in the family burial ground.
Soon after the execution the friends and relatives of the dead man made
friendly calls upon the judges who had tried and sentenced him. These
visits were intended to show that the visitors harbored no feelings of
bitterness or revenge against those who, in condemning one of their
loved ones to death, had only performed the high and righteous duties of
just and honorable judges of Israel.
PART III
_THE BRIEF_
[Illustration: THE LAST SUPPER (DA VINCI)]