In view of the fact that in pre-Christian and the earliest Rabbinic times legal capital punishment was carried out, as has been shown above, it becomes necessary to inquire when and why the practise of capital punishment ceased among the Jewish people. In Biblical times, and in post-Biblical times when the Sadducees controlled Jewish life, the old death penalties were carried out without essential modification. But under Roman rule, a change took place. Schürer claims⁠[185] that from the very beginning of the Roman dominion the Jewish courts lost their competence to judge capital cases. According to the gospel according to John, Pilate is made to say to the Jews, “Take Jesus yourselves and judge him according to your law. The Jews said unto him, ‘It is not lawful for us to put any man to death.’”⁠[186] Talmudic sources state that forty years prior to the destruction of the Temple, i. e., 30 C. E., the right of deciding capital cases was taken from the Jewish courts.⁠[187] But Rab Joseph, R. Hiyya and the school of Hezekiah taught, that this right was taken away from the Jews by the Roman government, from the time that the Temple was destroyed, i. e., 70 C. E.; adding, that the Sanhedrin abolished the practise though not the theory of the four death penalties.⁠[188] Of these two dates given by the Rabbis, the second is apparently correct. The earlier date, 30 B. C. E., probably arose from a misunderstanding. The original statement made by R. Ishmael b. Jose, (end of the second century), was that forty years before the destruction of the Temple, the Sanhedrin moved from the Temple and held its sessions in a shop. There is no reason to doubt this statement, Schürer notwithstanding. But R. Isaac bar Abdimi added to it: “This implies that they no longer judged capital cases.” This second statement is seemingly not an historical tradition, but only an inference drawn on the theory that capital sentence could be pronounced only in the special hall of the Sanhedrin in the Temple. This inference is disproved by a number of historical facts, which show that the Rabbinical courts had competence in capital cases in Roman times until the destruction of the Temple and of the Jewish State in 70 C. E. Josephus mentions the reluctance of the Pharisees to impose the death penalty, contrasting them in this regard with the Sadducees.⁠[189] He states further that when a Sadducee became a judge, he would adopt Pharisaic norms of judgment, because the public would not otherwise tolerate him.⁠[190] Elsewhere⁠[191] he mentions that the Essenes punish blasphemy by death. These three notices, although not necessarily referring to post-Christian times, are significant when taken in connection with the following facts. Up to the time of the destruction of the Temple, the Romans granted to the Jews the right to put to death any foreigner, even a Roman citizen, who passed beyond the Temple limits,⁠[192] and there is no warrant for Schürer’s supposition that this right could be exercised only after obtaining the sanction of the procurator.⁠[193] Certainly under King Agrippa, 41-44 C. E., this Jewish law of capital punishment was in force.⁠[194] The story of the trial of Stephen⁠[195] and the different accounts of the trials of Paul before the Sanhedrin,⁠[196] although they are often untrustworthy, presuppose the competence of the Sanhedrin to judge capital cases at a period later than the year 30 C. E. Anan, the Sadducean high priest for three months in 62 C. E., is said by Josephus to have imposed and carried out the death penalty.⁠[197] Rabbi Eleazar ben Zadok cannot have seen the burning of the high priest’s daughter⁠[198] prior to 40 C. E., since in the year 70 C. E. he was still a young man.

There seems therefore to be no valid reason for doubting the statement of R. Joseph, R. Hiyya and the school of Hezekiah, that the Roman government allowed the Jewish courts a measure of jurisdiction in capital cases up to the time of the destruction of the Temple in 70 C. E.,⁠[199] but that after that date the Jewish courts were no longer allowed this jurisdiction. Origen (d. 254 C. E.) says that the Jewish law can no longer punish the murderer or stone the adulteress because the Roman government has assumed these rights.⁠[200] The Didascalia⁠[201] also remarks, that the Jewish law of capital punishment is no longer in force. The Talmud testifies uniformly that the Jewish courts had no power over life and death after the year 70 C. E.

But there are some minor exceptions to this that must be noted.

(i) A certain R. Hama b. Tobiyah caused Imarta, daughter of the priest Tali, to be burnt. But his action was condemned, both because the sentence had been carried out in the barbarous non-Pharisaic method that R. Eleazar ben Zadok had seen in his youth,⁠[202] and because a capital sentence had been imposed after the destruction of the Temple.⁠[203] (ii) On one occasion a certain Tamar was condemned (although not to capital punishment) by Rab Ammi, Rab Assi and Rab Hiyya b. Abba in Tiberias (c. 300 C. E.). She complained to the Roman proconsul in Caesarea of this usurpation of the Roman right of judgment, and the influential intervention of Abbahu was required to protect the Rabbinical judges.⁠[204] (iii) On another occasion, Rab Shila, perhaps the Tana of that name, caused a man who had committed an offence to be whipped. The man complained to the Roman government that Rab Shila was exercising judicial functions without the authority of the government. The government sent an officer to investigate the case, and the complainant was adjudged by the officer to have rendered himself liable to the death penalty through the offence for which R. Shila had punished him. The offender was thereupon handed over by the officer to Rab Shila. But Rab Shila refused to consummate the sentence, on the ground that since the exile from Palestine, the right of capital punishment had not been vested in the Jews. Subsequently, when the man was about to make a second complaint about Rab Shila, Rab Shila who had been given the staff of judicial authority, killed the man with his staff.⁠[205] (iv) Another case in point is the following: A man once declared before Rab (d. 247 C. E.), that he would persist in a certain course despite Rab’s warning. Rab Kahana who was present rose up and killed the contumacious man. Rab declared the killing to be legally justified, but advised R. Kahana to flee to Palestine, since the new Persian rulers were stricter in punishing bloodshed than the Romans had been.⁠[206] (v) Lynch law is recognized by the Mishna, when it allows certain offenders to be struck down flagrante delicto.⁠[207] (vi) In connection with the remark that the one born under the planet Mars will be a shedder of blood, Raba (4th century) said, ‘I was born under Mars’; to which his pupil Abaye remarked, ‘Master, you also (as exilarch) punish and put to death.’⁠[208] (vii) Origen in his letter to Africanus (240 C. E.) declares that the Jewish Patriarch in Palestine exercised the power of imposing and carrying out capital sentences.⁠[209]

But the utmost that these cases prove is, that subsequent to 70 C. E., a capital sentence carried out by a Jew, whether by lynch law or after judicial trial, was an exception occasionally tolerated through the generosity, the weakness or the corruption of the Roman or the Persian authorities. The fact remains that subsequent to 70 C. E., the Jewish law governing capital punishment fell into disuse. The Amoraim, although they were the bearers of tradition, were not familiar in practise with the actual judgment of capital cases and the imposition of capital punishment. It is clear, therefore, that many of the dicta of the later Rabbis concerning details of the law of capital punishment are legal inferences rather than historical facts, and many of their discussions are discussions of theory as to how the death penalty would be carried out if the Rabbinic courts should again have jurisdiction.

Similarly, much of the elaboration of criminal legal procedure at which we have glanced is a theoretic development, dating from the first centuries of the common era, which was never put to a practical test. Many elements in it, such as the regulations governing witnesses and their testimony, are elaborated theoretical developments of early practise. In their fully developed form, these regulations would have broken down as unworkable at the first touch of practise. Much else is on the face of it dialectic, legal discussion conducted on the principle of the meritorious nature of constant exposition and interpretation of the law. This principle indeed is quoted in connection with the decisions governing capital punishment.⁠[210] As an instance of this type of expository discussion may be mentioned the decision⁠[211] that strangling should be the punishment for one who through craft or force gets another into his power, forces him to serve, and then sells him into slavery. Such a ruling is hardly a precedent based on practical experience. The discussion in the Talmud⁠[212] proves it to be only a theoretic case. Similarly, the restrictions governing the treatment of the apostate city are admittedly only theoretic, since the conditions required were so many and so specialized that they could never occur together. It is frankly confessed, that these conditions are only the result of study-house discussion conducted for the merit of detailed and far-reaching interpretation.⁠[213] In exactly the same way, it is openly stated, that a case of the “rebellious, gluttonous son”⁠[214] never had occurred and never would occur, the conditions required by the Rabbinic jurists being practically impossible of occurrence together. The formulation of these conditions was admittedly only the result of dialectic development.⁠[215]

A passage was quoted above,⁠[216] prescribing imprisonment in a kipah in certain cases. Where the Talmud asks what is meant by kipah, and R. Jehudah explains that by kipah is meant a den of about five and a half feet in size,⁠[217] it is clear that we are dealing with traditions about legal matters which had not had practical application within the memory of the Amoraim. When, further, we remember the discussions among the Rabbis themselves, such as which death penalty should go with which crime, or which would be the correct method of execution, or whether the dead body has to be hanged only in certain cases or in others also, and similar debates, it is clear that we often have to do with matters of theoretic discussion about which there was no certain tradition. In fact, in one passage, a legal decision concerning capital punishment is called a decision that will be of practical application only when the Messiah comes and the Jewish system of capital punishment will be once more in use.⁠[218]

The result, therefore, to which our investigation leads along various converging lines is, that originally the death penalty was carried out through the decisions of the court approximately according to the demands of the Bible. But at least as early as the beginning of the Christian era, modifications had arisen, particularly among the Pharisees, affecting the methods of inflicting the death penalty.⁠[219] These modifications apparently grew out of two chief causes, (a) the desire to preserve the body from mutilation or disfigurement (possibly in part owing to the Pharisaic belief in the resurrection which had not been of weight with the Sadducees), and (b) the tendency to extend the golden rule, so as to make the death penalty as humane as possible. But the Rabbinic courts lost their jurisdiction in capital cases at the fall of the Jewish state in 70 C. E. With this went the transference of the problem of capital punishment from the realm of fact to that of legal theory, and Rabbinic, juristic imagination became free to develop the field of historical tradition, untrammeled by the restraints of practise. The compensating spiritual inbreeding, which occurred when external manifestations of Jewish national life were proscribed, resulted, in this special legal field as in all other fields of Jewish thought, in the over luxuriant development of the theory of Jewish practise. In Amoraic times, the Rabbis no longer recognised with certainty in many cases, whether a practise was old and traditional, or whether it was a comparatively new development based only on theoretic deduction. Even in early Tannaitic times, there was often uncertainty as to what was known through tradition and what was known through interpretation. This is brought out very clearly in the account of the discussion between Hillel and the Bene Bethera on the question of the sacrifice of the paschal lamb on Sabbath.⁠[220] The Rabbis therefore often projected legal conceptions into the past as actual facts.⁠[221]

It is impossible for us to pick out from the vast accumulation of statements, rules and principles governing capital punishment according to Amoraic ideas, exactly how much is historical tradition founded on actual practise and how much only theoretic deduction. But from the beginning of the Rabbinic period, we can clearly trace a growing feeling of repugnance to capital punishment, which, along various lines, succeeded in making capital punishment obsolete through legal theory. Had the later Rabbis ever been granted the right of trying capital cases, the theory which had been developed would have made legal capital punishment impossible of application. Thus the Mishna already could say,⁠[222] that a Sanhedrin condemning to death once in seven years was called a destroying or bloody Sanhedrin. Rabbi Eleazar ben Azariah (first cent.) said that it was so called for imposing the death penalty even once in seventy years.⁠[223]

It should be plainly recognised that capital punishment was never formally abolished by the Rabbis. The penalty of death was demanded by the laws contained in the sacred statute book, the Bible, and as such it was accepted as needing no justification or defence. But it was legislated out of all practical application in the development of the law. The Rabbis of the Talmudic era abolished capital punishment in the only way open to them,—in theory, as they would undoubtedly have abolished it also in legal practise while retaining it as a dead letter on the fundamental statute book, the Bible, had Jewish national independence been regained in their day.