CAPITAL PUNISHMENT
In the following essay, an attempt is made at tracing the history of capital punishment among the Jews. From the Biblical period onwards, there took place a long and complex development of the principles, the methods and the application of capital punishment.
The story of this development is contained chiefly in the Old and the New Testaments, Josephus, the Rabbinic writings and the Responsa of the Middle Ages. The following study, which is based on these sources, attempts to make clear what was the nature of this development.
The Four Methods of Capital Punishment
According to a saying of the Rabbis, nine hundred and three different methods of death have been created for man.[1] But Rabbinic jurisprudence recognised only four legal methods of inflicting death as the penalty for a capital crime, namely: stoning, burning, decapitation and strangulation.[2] One man, Yakim (or Yakom), a nephew of Jose ben Joezer (2nd cent. B. C. E.), is said to have killed himself by all four methods at once. He first set up a beam from which he hung a noose. Then he arranged faggots at the foot of the gibbet, surrounded them with stones and set a sword with its blade pointing upwards in the stones. He then kindled the faggots and hanged himself in the noose, the flames burned away the rope so that his body fell into the fire, and at the same time on to the stones and on the sword-blade.[3]
(a) Stoning
In appraising the Jewish attitude towards capital punishment in general, it is necessary first to examine the history of these four methods of capital punishment among the Jews.[4] The first to engage our attention is Stoning (Sekilah).
In Biblical and Rabbinic legislation, stoning is the punishment decreed for a number of transgressions, such as idolatry, Moloch worship, magic, necromancy, false prophesying, Sabbath desecration, blasphemy of God’s Name, cursing of parent, and other crimes, seventeen in all, listed in the Mishna.[5]
Stoning was apparently the usual method of inflicting the death penalty in Biblical times whenever burning was not specifically called for.[6] It was carried out outside the camp or town or at the gate,[7] by the people or mob, without any other ceremony[8] than the casting of the first stone by the witnesses.[9]
In post-Biblical times, we find that according to John x, 31, “the Jews took up stones again to stone” Jesus. According to Acts vii, 57f, Stephen, the protomartyr of the Church, was stoned, but whether by the uprising of the mob or by judgment of the court, is not clear.[10] According to Luke xx, 6, the chief priests and the scribes and elders feared to suggest that John the Baptist was not a prophet, because if they did so “all the people will stone us.” In a passage which is admittedly a Christian interpolation in Josephus, we are told that the Sadducean high priest Anan (62 C. E.) removed James, the brother of Jesus, and some others by stoning, after a semblance of a legal trial.[11]
In the Rabbinic literature also, there are incidental references to actual cases of stoning, which may seem to imply that in the earliest Rabbinic period lapidation was carried out in the simple manner described in the Bible. In the Mishna,[12] it is stated that a priest who ministered in the Temple in a state of ritual impurity was beaten on the skull by the young priests, with blocks of wood.[13] In early Rabbinic times, the death penalty by stoning was undoubtedly carried out. Rabbi Eleazar ben Jacob (1st cent. C. E.) states that as an exemplary measure, the Jewish court (Beth Din) in Grecian days, imposed the sentence of stoning on one who rode on horseback on the Sabbath.[14] Tosefta Sanhedrin ix, 5, mentions a definite case of a man going out to be stoned. Tradition states further that Ben Satda, later wrongly identified with Jesus[15], was stoned.[16] The Beth Din in Jerusalem is also said to have inflicted the death penalty by stoning for a case of apparent incest and for another gross crime.[17] But whether any of these cases of stoning was carried out in the Pharisaic method of precipitation described in the Mishna Sanhedrin vi, 4, is not clear from the sources.[18]
It may be asked what basis there was for the Pharisaic modification of lapidation to precipitation. In a war with Edom, captive Edomites were killed by being precipitated from a rock.[19] Two Jewish mothers who had circumcised their children during the persecutions of Antiochus Epiphanes are said to have been killed by being hurled from the wall of the city.[20] The false witnesses who accused Susanna were similarly dealt with.[21] The gospel according to Luke relates that the people of Nazareth wished to cast Jesus headlong from the brow of the hill whereon their city was built.[22] Precipitation was therefore a well recognised modification of lapidation, and not a sheer invention of the Rabbis.
A similar modification was very early introduced in the treatment accorded to the scapegoat. Instead of the scapegoat being sent forth into the wilderness, as the Bible describes,[23] it was in practise precipitated from a rock. Similarly, the Pharisaic tradition early substituted precipitation for stoning in the case of human punishment. According to a convincing emendation of a Talmudic text suggested by L. Ginzberg,[24] precipitation had taken the place of lapidation at least as early as the time of R. Jochanan ben Zaccai, (fl. 75 C. E.).
The Rabbis held lapidation to be the most severe of the four death penalties, and precipitation was regarded as a humane modification of it. The Mishna states that the victim was thrown from twice a man’s height, i. e., about 11 feet. But if you wish to ensure a certain and easy death, asks the Talmud, why not cast him from a greater height? The answer is given because that would lacerate the body.[25] The words “his blood shall be on him”[26] were taken as implying that he shall be so killed that the blood shall remain in him. The change in method advocated by the Pharisees therefore seems to have had for its purpose the desire to make the death more humane, certain and speedy, and to preserve the body so far as possible from being mangled. The custom of giving to the one condemned a wine compounded with myrrh to dull the senses,[27] would be another expression of this desire to rob the punishment of its horror and pain.
(b) Burning
The second death penalty, that of Burning (Serefah), is prescribed by the Biblical law for a priest’s daughter who commits adultery, and for the crime of incest with mother and daughter.[28] The house of the guilty may also have been burnt.[29] There is no reason to doubt that this punishment in Biblical times involved the actual burning of the living victim.[30]
In post-Biblical times, we find that on March 13, 4 B. C. E., Herod burnt alive Matthias and his companions who had pulled down the golden eagle set up over the gate of the Temple.[31] But this was the act of a despotic monarch and not of a court of law. Josephus reports about himself that the Galilean mob regarded him as a traitor, and some cried out to stone the traitor and others to burn him.[32] This also would have been the act of a passionate populace in wartime, and not a legally imposed punishment. But there is one well attested instance in early Rabbinic times of an actual burning by decree of a court of law. This was reported by Rabbi Eleazar ben Zadok (fl. c. 100 C. E.), who said that as a young child he had seen the adulterous daughter of a priest bound around with vine branches and burnt.[33] His fellow Rabbis, representing the Pharisaic tradition, declared that such a course of action involving a literal burning, could have been carried out only by an unlearned court (Mishna), or, according to R. Joseph, by a Sadducean court.[34] The Book of Jubilees, which is also Sadducean in its Halacha, prescribes burning for the marriage of a Jewess with a non-Jew, for adultery and incest.[35]
But the Pharisaic tradition, as is well known, mitigated the severity of the punishment by changing it into strangulation followed by a slight, almost symbolic burning of the throat and inward parts.[36] The reasons for the change of method are apparently the same as in the case of stoning, first, the desire to rob the death of its pain[37], and secondly, to avoid marring the body.
This latter reason is emphasized in the statement of Rab Mathna in the Talmud[38], that the modification in the method was approved so that the breath of life should be burnt out and the body preserved, as was supposed to have been the case with the sons of Korah.[39] Rabbi Eleazar adduces the same reason, referring to the case of the sons of Aaron.[40] The Tannaitic tradition held that Nadab and Abihu met their death through two narrow tongues of flame coming forth from the holy of holies, each dividing into two and entering into the nostrils of the two men, thus burning out the breath of life and leaving their clothes and their bodies uninjured.[41] Similarly, the Syriac Apocalypse of Baruch says that Sennacherib’s army was burnt by God only within their bodies.[42] This statement reflects the Midrashic tradition that because Shem covered his father’s nakedness, the clothing of his Jewish descendants Nadab and Abihu, and of his non-Jewish descendants composing Sennacherib’s army, was not burnt when the fire of the Lord burnt out their lives.[43]
In all this is emphasized the Pharisaic desire to preserve the body of the victim uninjured. According to R. Joseph, who declared that a court which sentenced to an actual burning must have been a Sadducean court,[44] this consideration was not of weight with the Sadducees. It has been suggested therefore, that this desire of the Pharisees may have been connected with their belief in the resurrection of the body, a belief rejected by the Sadducees.[45]
The method of burning advocated by the Pharisees does not seem to go back beyond the Christian era. The incident of the actual burning of the priest’s daughter, witnessed by Rabbi Eleazar ben Zadok shortly before the fall of the Temple, might be interpreted as implying that the change in method was then taking place.[46] There is no mention in the sources of a case of burning being carried out in the Pharisaic manner, although the full details preserved in the Mishna, describing the application of the method, would imply that the method had been in use. But the number of cases of the possible application of the penalty was limited, and a burning must have been a rare occurrence.
(c) Beheading
The third legal capital punishment recognised by the Rabbis is Beheading (Hereg). Death by the sword, although recognized in a blood feud and often used by kings,[47] is nowhere mentioned in the Bible as a penalty ordered by law, except for the apostasy of a whole community.[48] According to the Mishna,[49] murder also is punished by beheading. The Boethusians,[50] the Samaritans,[51] Philo,[52] Jesus,[53] Josephus,[54] the Book of Jubilees,[55] Eliezer ben Hyrcanus, (1st cent. C. E.),[56] like the later Karaites,[57] all agree in recognizing the Biblical talio as the punishment for murder. This does not necessarily imply that the method of inflicting the death penalty had to be the same as the method used by the murderer. It implies only that murder was punishable by death.
The Pharisaic ruling that the death penalty for murder was inflicted by decapitation is not disputed by any of the Rabbis.[58] But the method of the execution is debated. The Mishna states that the victim’s head was cut off at the throat with a sword, as the (Roman) government carried out an execution.[59] R. Jehudah (135-220 C. E.) objected that this jus gladii would disfigure the victim.[60] He therefore advocated, that instead of the old method recognized by the Rabbinical tradition, the murderer’s head should be placed on a block and chopped off at the neck with an ax. The Rabbis protested that this method of beheading advocated by R. Jehudah would be far more shameful to the victim than that common to the Jews and the Romans. R. Jehudah admitted the force of their objection, but defended the method advocated by him because it was not the same as Roman custom. The Talmud then proceeds to eliminate other possible methods of killing by the sword, such as piercing or cleaving the body, by quoting the principle of the golden rule “Thou shalt love thy neighbor as thyself.”[61] Therefore we must choose for him the easiest death. The comparison is then brought with the heifer that was killed to atone for bloodshed.[62] As the heifer, the substitute for the unknown murderer, was killed by having its throat cut, so the known human murderer had his throat cut and not his head chopped off at the neck, the golden rule again being quoted as authority.[63]
In this case also the sources do not mention an actual case of decapitation being carried out by a Jewish court. According to the New Testament, Herod Antipas had John the Baptist killed by beheading,[64] and Agrippa I. caused James the apostle, the brother of John, to be killed by the sword.[65] But neither of these executions was ordered by a Jewish court of law.
(d) Strangulation
The fourth method of capital punishment recognised in Pharisaic tradition is Strangulation (Henek).
Strangulation does not appear in the Bible as a recognised legal method of punishment. The only Biblical instance of death by strangulation is the suicide of Ahitophel.[66]
The Mishna[67] specifies strangulation as the punishment for the son who purposely wounds his parent, for the false prophet, for the one who prophesies in the name of idolatry, for stealing a Jew, for adultery with a married woman, seducing a priest’s betrothed or married daughter, etc. It was the method of capital punishment preferred by the Rabbis; for R. Yoshia said that wherever the Bible does not specify the method of carrying out the capital sentence, strangulation should be adopted because it is the least severe measure. Rabbi Jonathan also said that strangulation should be adopted, even though in his judgment strangling is not an easier method of death than other methods.[68] The reason for this preference seems to be because of the four legally recognized methods of capital punishment, strangulation as it was carried out was the only one which left the body practically uninjured. The condemned man was to be sunk up to his knees in mud and then strangled by having a hard cloth which was wrapped in a soft one twisted around his neck and pulled in opposite directions until the suffocated victim died.[69] Strangulation therefore satisfied the Rabbinic desire to avoid marring the body far better than did stoning, burning or decapitation. R. Jehudah explains that the death penalty as inflicted by man should be like that inflicted by God in not injuring the human body.[70] This consideration it was, also, as we have seen, that played a large part in inducing the Rabbis to mitigate the method of burning, by reducing it to strangulation followed by an almost symbolical burning.
Again, in this case, the sources do not mention any definite case in which the punishment of strangulation was actually carried out as a result of a court judgment. But it is clear that strangulation induced in the older manner of hanging was not infrequently consummated in the earlier Rabbinic period. Raguel’s daughter Sarah “thought to have hanged herself.”[71] A proverbial remark in the mouth of Rabbi Akiba (d. c. 132 C. E.), ‘if you wish to strangle yourself, hang yourself on a high tree’,[72] would indicate that hanging was a well recognised method of death. According to one source, Judas Iscariot hanged himself.[73] It is reported by Rabbi Eleazar,[74] that Simon ben Shetach (fl. 80 B. C. E.) hanged women in Ascalon. But in this case the question arises whether they were hanged alive or hanged as a reproach after they had been otherwise killed.
Hanging, according to Biblical custom, was meted out to the dead body of one who had been otherwise killed. The order of the words in Deut. xxi, 22, 23 implies, that first the malefactor has been put to death, and then as an added indignity his corpse is suspended. The same treatment of hanging the corpse was meted out to the murderers of Ishbosheth.[75] Similarly, Joseph tells the chief baker that in three days Pharaoh will take off his head and then hang his dead body.[76] The dead bodies of Saul and Jonathan were hung up by the Philistines.[77] The five kings were first killed by Joshua and then hanged.[78] A momentary hanging of the corpse was recognised by the Rabbis in the case of the male idolator or blasphemer.[79] From these examples of Jewish custom and from the context in the Mishna and Talmuds, it becomes clear, that the witchcraft victims of Simon ben Shetach’s zeal, were hanged in ignominy after the death penalty had been otherwise inflicted. In any case, the discussion in the Mishna and the Talmud[80] shows that the action of Simon ben Shetach was an exceptional action, from which no conclusion as to the regular course of law could be drawn. There is consequently no evidence of hanging alive ever having been carried out by a judicial sentence of the Rabbis. It need scarcely be added that the Roman punishment of crucifixion was a penalty unknown to Jewish law and abhorrent to Jewish feeling. The inhuman savageness shown by Alexander Jannaeus in crucifying his prisoners of war was no more a legally recognised form of capital punishment than was his cutting the throats of the wives and children before the eyes of the crucified victims.[81]