But the most thoroughgoing modification of the system of capital punishment was not brought about through change in the methods of imposing the death penalty, but through surrounding the accused with so many legal safeguards that it became virtually impossible ever to impose a death sentence.

The law limited the right of trying capital cases to the high tribunal of twenty-three, not even the king having the right to put to death other than through the Sanhedrin.⁠[128] According to Rabbinical tradition, one very large class of capital cases was taken out of the jurisdiction of any human court, namely those in which the Bible stipulates Kareth or Excision as the punishment. This ruling at one stroke absolved the Rabbinical courts from the obligation of imposing the death sentence in a large number of cases.

In many passages in the Pentateuch it is stated that the one committing certain transgressions “will be cut off from his kinsfolk.”⁠[129] Modern Biblical scholars understand the phrase as referring to the imposition of the death penalty by the court. The Karaites also understood Kareth in this sense, through a comparison of Exod. xxxi, 14b with the parallel passages xxxi, 14a, 15 and Num. xv, 35. The one passage prescribes Kareth, the others prescribe death as the punishment for Sabbath profanation. Similarly Kareth in Lev. xx, 3 is the equivalent of stoning, the punishment designated in the preceding verse for Moloch worship; and Kareth for blasphemy in Num. xv, 30 is the equivalent of stoning mentioned as the punishment for the same crime in Lev. xxiv, 14. The fate of Achan,⁠[130] of Naboth,⁠[131] and of the adulteress,⁠[132] would seem to show that the whole family of the convicted person could judicially be put to death. In some cases,⁠[133] the death penalty is specified as well as the penalty of Kareth.

None the less, the Rabbis consistently understand Kareth to be not a death penalty inflicted by man but a punishment left in the hands of Heaven. Thus the Rabbis interpret Kareth specifically as dying childless,⁠[134] or as dying at 50 years, or, according to Raba, between 50 and 60 years, before completing the otherwise destined span,⁠[135] or as the cutting off of the soul in the future life.⁠[136] For this interpretation of Kareth as a punishment by Heaven would speak the personal pronoun in the phrase, “I will cut off,” the active form sometimes used.⁠[137] For this would also speak the passages wherein the death penalty is threatened as well as Kareth, usually adduced as favoring the other interpretation of Kareth, if we understand them, as we well may, as threatening an alternative, either the death penalty by the court or Kareth by God. That this may be the meaning is clear from a careful reading of Lev. x, 1-5, wherein the Moloch worshipper is threatened with death by stoning at the hands of the people, or if the people do not so punish him, then God will cut him off. Such phrases as “they shall bear their sin,”⁠[138] or “they shall bear their sin and shall die childless,”⁠[139] or “they shall die childless,”⁠[140] would also be most naturally understood as taking the right of punishment away from the human court and leaving it to Heaven. It has been suggested that the Niqtal form, usually translated as passive “and shall be cut off,” should be understood in a reflexive sense, “(that soul) cuts itself off.” But this explanation seems unlikely in face of the occurrence of the active forms “I will cut off” or “and I will destroy that soul from the midst of its people.”⁠[137] Whatever be the preferable explanation of Kareth in each passage in which the term occurs, the interpretation consistently given to it by the Rabbis is highly significant. Their tendency away from capital punishment is clearly seen in their leaving to the heavenly tribunal the punishment in all cases where Kareth is prescribed in the Bible.⁠[141]

The other restrictions in court procedure are too well known to need setting forth here in detail. It is enough to mention some of the rules of evidence, particularly the minute safeguards with which the giving of testimony was surrounded. Torturing of witnesses to extract from them convicting evidence was entirely unknown. The aim of the court was to lead the witnesses into giving evidence favorable to the accused, not to coerce them into helping condemn him. According to R. Jose b. Jehudah, a witness could testify only in favor of the accused.⁠[142] The two witnesses had to be free adult men,⁠[143] sound in mind and body, of unquestioned integrity,⁠[144] and free of all suspicion of personal relationship to the defendant⁠[145] or interest in the case.⁠[146] They were first solemnly warned and adjured as to the blood responsibility resting on them and their heirs after them.⁠[147] They were then cross-examined separately,⁠[148] very searchingly,⁠[149] with the haqira affecting place,⁠[150] time, the warning, etc., and with the bediqa going into the smaller details.⁠[151] A slight contradiction or discrepancy in their evidence invalidated their testimony.⁠[152] They had to prove the act, and, what was far more difficult, prove also the intention. In order to be able to prove deliberate and understanding premeditation, the witnesses must both have warned the accused before he committed the crime,⁠[153] with a clear warning (Hathraa), including a definite reference to the kind of punishment and the measure of punishment which his act would involve.⁠[154] The warning given by them had to have been so clearly understood, that the accused had replied that he would commit the crime none the less, thereby showing that he had fully understood the warning.⁠[155] The act must have followed closely on their warning, or the warning by the witnesses was not considered adequate, on the ground that in the intervening time it may have escaped the culprit’s memory.⁠[156] If there was a technical flaw in the giving of this warning by the witnesses, the accused was given the benefit of the doubt that there had not been dolus but only culpa,⁠[157] and where the crime was not premeditated, no death penalty could be imposed.⁠[158]

Further, circumstantial or presumptive evidence was disallowed. The witnesses had to have seen each other when the act was committed,⁠[159] and had to have seen the act itself, and not only what went before it or what followed it. For instance, even in early Rabbinic days, Simon ben Shetach (fl. 80 B. C. E.), who undoubtedly believed in and imposed the death sentence during his lifetime,⁠[160] did not consider the strongest circumstantial evidence as evidence. It is related⁠[161] that he once saw one man pursuing another. He followed them and found the pursued man murdered and the pursuer holding a sword dripping with blood. Simon said to the murderer: ‘Either you or I killed this man. But what can I do? Your blood guilt is not delivered into my hands; for the Torah says⁠[162] that you can be condemned only by the actual testimony of two or more witnesses. May God who knows the inward thoughts requite the one who committed this murder.’⁠[163]

In these and in similar ways, tradition developed the rules contained in the Torah, that two witnesses were needed and that the witnesses themselves had to carry out the death sentence. As the number of necessary conditions increased, it became virtually impossible in a capital case to obtain unassailable testimony adequate for a condemnation.

Many other legal refinements made it still more certain that no one would ever be legally condemned to death. For example, murder was not punishable by death, as we have seen, if it could be proved to have been not fully premeditated or intentional. Thus, if the murderer had meant to kill one man and had killed another; or had he meant to wound him on the thigh and instead had struck him on the heart and killed him, capital punishment could not be meted out, since the criminal intent to kill was not present.⁠[164] Again, if the murderer were weak-minded, or intoxicated, or a deaf-mute, or a minor, or acting under compulsion or acting in self defence,⁠[165] etc., he could not be condemned to death. Or again, if the man murdered had been fatally ill or for any other reason would not have lived had he not been murdered, the guilty man was not considered liable to the death penalty. And even if the murderer was suffering from an illness that in the ordinary course would shortly kill him, the court would not anticipate God’s decree by carrying out the death penalty.

But over and above these thick protecting hedges which made it virtually impossible to obtain a death sentence, there were many other considerations which further removed the possibility of executing a capital sentence. Thus there was a thoroughgoing rule that no punishment affecting the personality of a man⁠[166] might be imposed on a deduction a fortiori.⁠[167] Unless there was explicit Biblical warrant for the death penalty, it was prohibited to deduce this penalty by rules of interpretation, a principle in itself that worked consistently towards moderating the severity of the written law.

Moreover, just as the power of the witnesses was minimized and the rights and privileges of the defendant were magnified, so also the rights and privileges of the judges were hemmed in and restrained in every way. Only a high court of twenty-three could try capital cases.⁠[168] The judges all had to be picked men of high standing, character and attainments.⁠[169] They were impressed with the words of their own warning to the witnesses, that he who causes a soul to be put to death unjustly is as though he had destroyed the whole world.⁠[170] When engaged on a capital trial, they were put under severe discipline.⁠[171] They took the place both of the counsel for the defendant and of the jury.⁠[172] Two death penalties could not be pronounced on one day.⁠[173] For final condemnation, a second ballot had to be taken on the following day.⁠[174] If twelve of the twenty-three judges were in favor of acquittal against the other eleven, the defendant was freed by the majority of one. But if twelve held him guilty and eleven held him innocent, the defendant could not be condemned by the majority of one. A majority of at least two was necessary for a condemnation.⁠[175] A judge was not permitted to change his mind and declare his decision for a condemnation when once he had voted for an acquittal.⁠[176] Unless each judge could give an individual reason for his opinion his vote was not counted.⁠[177] According to the striking opinion of Rab Kahana, if the judges were unanimously in favor of conviction, the accused should be freed.⁠[178] In general, it was held to be better that the guilty should escape punishment than that one innocent man be put to death. The judges had the less hesitancy in inclining to mercy, because of the belief that God would not allow the guilty to remain unrequited.⁠[179] In the story of circumstantial evidence quoted above, Simon ben Shetach left the punishment of the murderer to God. When the Jewish courts no longer had jurisdiction, it was felt that God would fittingly punish those who had rendered themselves legally liable to the death penalty.⁠[180] The Mechilta, elaborating the Biblical words “For I, God, will not let the guilty go free,”⁠[181] says, that if one who is guilty has been discharged by the court as not guilty, he is not to be taken back for a retrial. God has instruments and means enough to bring upon him the punishment that he has incurred.

After an acquittal there could be no appeal; but after a conviction an appeal could be lodged at any time.⁠[182] If one ultimately was condemned, he was given every facility to escape his fate through the publicity of a herald’s proclamation,⁠[183] through the assiduous attempt to elicit new favorable evidence even during the procession to the place of execution,⁠[184] etc.

Examples of legal safeguards could readily be multiplied. But it is sufficient for our present purpose to sum up these details by saying that the publicity of the trial, the confrontation of the defendant and the plaintiff, the absence of torture, the careful elimination of improper witnesses, the solemn warning to the witnesses, the searching examination of the witnesses, the remarkable requirements for a valid warning, the extraordinarily high standard as to what constituted evidence, the equally extraordinary number of loopholes allowed to the defendant, the limitations on the court, forbidding it to deduce a capital punishment if the Bible did not explicitly call for one, the immediate acquittal by any majority of the judges, the postponement of the final decision if a majority were in favor of death, the obligation on those who had voted against the death penalty of keeping their vote unchanged at the second ballot, together with the permission to change their opinion granted those who had voted in favor of the death penalty, the right of the judges after a condemnation to change their opinion any time before the execution, the constant public appeal for further evidence until the final execution, the prohibition of more than one capital sentence being pronounced in one day, and other innumerable elements of legal interpretation and procedure, all worked to make legal capital punishment impossible of practical application.