Capital Punishment.

By: Marcus Jastrow , S. Mendelsohn

—In the Pentateuch:

Warrants for the infliction of capital punishment, as opposed to private retribution or vengeance, are found in the Pentateuchal codes for the commission of any one of the following crimes: adultery (Lev. xx. 10; Deut. xxii. 22); bestiality (Ex. xxii. 18 [A. V. 19]; Lev. xx. 15); blasphemy (Lev. xxiv. 16); false evidence in capital cases (Deut. xix. 16-19); false prophecy (Deut. xiii. 6, xviii. 20); idolatry, actual or virtual (Lev. xx. 2; Deut. xiii. 7-19, xvii. 2-7); incestuous or unnatural connections (Lev. xviii. 22, xx. 11-14); insubordination to supreme authority (Deut. xvii. 12); kidnaping (Ex. xxi. 16; Deut. xxiv. 7); licentiousness of a priest's daughter (Lev. xxi. 9); murder (Ex. xxi. 12; Lev. xxiv. 17; Num. xxxv. 16 et seq. ); rape committed on a betrothed woman (Deut. xxii. 25); striking or cursing a parent, or otherwise rebelling against parental authority (Ex. xxi. 15, 17; Lev. xx. 9; Deut. xxi. 18-21); Sabbath-breaking (Ex. xxxi. 14, xxxv. 2; Num. xv. 32-36); witchcraft and augury (Ex. xxii. 17; Lev. xx. 27).

Modes of Punishment.

Only in comparatively few instances is the particular mode of death incurred by the commission of a crime prescribed. Blasphemy, idolatry, Sabbath-breaking, witchcraft, prostitution by a betrothed virgin, or deceiving her husband at marriage as to her chastity (Deut. xxii. 21), and the rebellious son are, according to the Pentateuchal laws, to be punished with death by stoning; bigamous marriage with a wife's mother and the prostitution of a priest's daughter are punished by burning; communal apostasy is punished by the sword. With reference to all other capital offenses, the law ordains that the perpetrator shall die a violent death, occasionally adding the expression, "His (their) blood shall be upon him (them)." This expression, as we shall see presently, post-Biblical legislation applies to death by stoning. The Bible speaks also of hanging (Deut. xxi. 22), but, according to the rabbinical interpretation, not as a mode of execution, but rather of exposure after death (Sanh. vi. 4, 75b).

Rabbinic Developments. —In Rabbinic Law:

An old-established rule of rabbinic jurisprudence forbids the infliction of punishment where there is no Biblical authority for such punishment (Sanh. 82b; compare Sifre, Deut. 154). That authority, however, may be established by Gezerah Shawah ( ); i.e. , by comparing similar or analogous expressions in two or more passages, in one of which the meaning and import of the expression are unmistakable (Ker. 5a). Similarly in cases where the Pentateuch imposes the death penalty, without specifying the mode of death, Talmudic jurisprudence discovers the particular mode intended by means of the principle of Gezerah shawah. Thus: In reference to the man or the woman who makes use of "a familiar spirit"— i.e. , "a wizard"—the law says (Lev. xx. 27), "They shall stone them with stones; their blood shall be upon them" ( ). Here the expression "Demehem bam" is plainly used in connection with death by stoning; hence it is argued that, wherever the same expression occurs in the Pentateuch in connection with the death penalty, it means death by stoning, and consequently the punishment of the crimes mentioned in Lev. xx. 9, 11, 12, 13, 16, is the same: death by stoning (Mek., Mishpaṭim, 17; Sifra, Ḳedoshim, ix.; Sanh. 53b, 66a). Again, with reference to the perpetrator of bestiality the law reads (Lev. xx. 15), "He shall surely be put to death; and ye shall slay the beast." Here the particular mode of death is not stated, but rabbinic law again infers it by means of a Gezerah shawah. Since, with reference to the enticer to idolatry, the Bible (Deut. xiii 10 [A. V. 9]) employs the term Harag = "to slay" ("Thou shalt surely slay him"), and this is immediately explained by the addition ( ib. 11 [A. V. 10]), "Thou shalt stone him with stones, that he die," it follows that the term "harag" used in reference to the beast likewise means to slay by stoning. And as for the criminal himself, his sentence is the same as that of the beast in connection with which he is mentioned (Sifra, l.c. x.; Sanh. 54b). In the case of the instigator to communal apostasy ("maddiaḥ") the law reads (Deut. xiii. 6 [A. V. 5]), "He hath spoken . . . to thrust thee out of the way of the Lord," and in that of the enticer of individuals ("mesit") the identical expression is used: "He hath sought to thrust thee away from the Lord" ( ib. 11 [A. V. 10]); hence as in the latter case stoning is the penalty, so it is in the former (Sifre, Deut. 86; Sanh. 89b). Finally, concerning the witch, it is said (Ex. xii. 17 [A. V. 18]), "Thou shalt not suffer her to live," and elsewhere ( ib. xix. 13) the expression, "Shall not live," is used in connection with "He shall surely be stoned"; therefore in the first case the particular penalty is to be the same as in the second (Mek., l.c. ; Sanh. 67a).

According to these conclusions, rabbinic law based on Pentateuchal authority, expressed or inferred, affixes death by stoning to each of the following eighteen crimes: 1. Bestiality committed by man (Lev. xx. 15; Sanh. vii. 4, 54b; Sifra, Ḳedoshim, x. 1; Mek., Mishpaṭim, 17). 2. Bestiality com mitted by woman (Lev. xx. 16: Sanh. vii. 4, 54b; Sifra, Ḳedoshim, x. 3; Mek., Mishpaṭim, 17). 3. Blasphemy (Lev. xxiv. 16; Sanh. vii. 4, 43a; Sifra, Emor, xix.). 4. Criminal conversation with a betrothed virgin (Deut. xxii. 23, 24; Sanh. vii. 4, 66b; Sifre, Deut. 242). 5. Criminal conversation with one's own daughter-in-law (Lev. xx. 12; Sanh. vii. 4, 53a; Sifra, Ḳedoshim, ix. 13). 6. Criminal conversation with one's own mother (Lev. xviii. 7, xx. 11; Sanh. vii. 4, 53a; Sifra, Ḳedoshim, ix. 12). 7. Criminal conversation with one's own stepmother (Lev. xviii. 8, xx. 11; Sanh. vii. 4, 53a; Sifra, Ḳedoshim, ix. 12). 8. Cursing a parent (Lev. xx. 9; Sanh. vii. 4, 66a; Mek., Mishpaṭim, 17; Sifra, Ḳedoshim, ix. 7). 9. Enticing individuals to idolatry: "Mesit" (Deut. xiii. 7-12 [A. V. 6-11]; Sanh. vii. 4, 67a; Sifre, Deut. 90). 10. Idolatry (Deut. xvii. 2-7; Sanh. vii. 4, 60b; Sifre, Deut. 149). 11. Instigating communities to idolatry: "Maddiaḥ" (Deut. xiii. 2-6 [A. V. 1-5]; Sanh. vii. 4, 67a; Sifre, Deut. 86). 12. Necromancy (Lev. xx. 27; Sanh. vii. 4, 65a; Sifra, Ḳedoshim, xi., end). 13. Offering one's own children to Molech (Lev. xx. 2; Sanh. vii. 4, 64a; Sifra, Ḳedoshim, viii., parashah 10, beginning). 14. Pederasty (Lev. xx. 13; Sanh. vii. 4, 54a; Sifra, Ḳedoshim, ix. 14). 15. Pythonism (Lev. xx. 27; Sanh. vii. 4, 65a; Sifra, Ḳedoshim, xi., end). 16. Rebelling against parents (Deut. xxi. 18-21; Sanh. vii. 4, 68b; Sifre, Deut. 220). 17. Sabbath-breaking (Num. xv. 32-36; Sanh. vii. 4; Sifre, Num. 114). 18. Witchcraft (Ex. xxii. 17 [A. V. 18]; Sanh. vii. 4, 67a; Mek., Mishpaṭim, 17).

As in the several classes included in the above category (1, 2, 5, 7, 8, 14) rabbinic jurisprudence establishes the particular punishment of the criminal on the basis of Gezerah shawah, so in most cases of the following category the particular punishment is deduced from Gezerah shawah. Thus, with reference to bigamy with mother and daughter the law reads (Lev. xx. 14): "It is wickedness" ("Zimmah hi"), and because elsewhere ( ib. xviii. 17) the identical expression is used with reference to criminal conversation of man with female relatives of other degrees, rabbinic law affixes the penalty which the Pentateuch attaches to the former also to the latter (Sanh. ix. 1, 75a; Sifra, Ḳedoshim, ix. 17). On the same principle the Rabbis establish the penalty for such conversation with relatives within certain ascending degrees, comparing them with the descending degrees of like removes, explicitly mentioned in the Bible (Yeb. 21a et seq. ; Yer. Sanh. ix. 26d; Yer. Yeb. ii. 3d).

The crimes punished in rabbinic law with death by burning are accordingly the following ten: 1. Criminal conversation by a priest's daughter (Lev. xxi. 9; Sanh. ix. 1, 76a; Sifra, Emor, i. 14 et seq. ). 2. Criminal conversation with one's own daughter (Yeb. 3a; Sanh. ix. 1, 75a). 3. Criminal conversation with one's own daughter's daughter (Lev. xviii. 10; Sanh. ix. 1, 75a). 4. Criminal conversation with one's own son's daughter (Lev. xviii. 10; Sanh. ix. 1, 75a). 5. Criminal conversation with one's own stepdaughter (Lev. xviii. 17; Sanh. ix. 1, 75a; Sifra, Ḳedoshim, ix. 16). 6. Criminal conversation with one's own stepdaughter's daughter (Lev. xviii. 17; Sanh. ix. 1, 75a; Sifra, Ḳedoshim, ix. 16). 7. Criminal conversation with one's own stepson's daughter (Lev. xviii. 17; Sanh. ix. 1, 75a; Sifra, Ḳedoshim, ix. 16). 8. Criminal conversation with one's own mother-in-law (Lev. xx. 14; Sanh. ix. 1, 75a; Sifra, Ḳedoshim, ix. 15). 9. Criminal conversation with one's own mother-in-law's mother (Sanh. ix. 1, 75a; Sifra. Ḳedoshim, ix. 17; Yeb. 21a et seq. ). 10. Criminal conversation with one's own father-in-law's mother (Sanh. ix. 1, 75a; Sifra, Ḳedoshim, ix. 17; Yeb. 21a).

The nine cases of incest here enumerated (2-10) subject the perpetrator to the penalty of burningonly when the crime is committed during the life of his legal wife (Yeb. 95a; Sanh. 76b; see Maimonides, "Yad," Issure Bi'ah, i. 5).

Two crimes only are punished by slaying: 1. Communal apostasy (Deut. xiii. 13-16 [A. V. 12-15]; Sanh. ix. 1, 52b; Sifre, Deut. 94.). 2. Murder (Ex. xxi. 12; Lev. xxiv. 17; Sanh. ix. 1, 52b; Mek., Mishpaṭim, 4; Sifre, Num. 160; see Homicide ).

The penalty for the first is explicitly declared (Deut xiii. 16 [A. V. 15]): "Thou shalt surely smite the inhabitants of that city with the edge of the sword"; but that of the latter is again based on the principle of the Gezerah shawah. As with reference to a murderer the law is (Ex. xxi. 20), "He shall surely be punished" ("naḳom yinnaḳem"; literally, "It shall surely be avenged"), and elsewhere (Lev. xxvi. 25) an "avenging sword" ("ḥereb noḳemet") is spoken of, the Rabbis argue that the term "naḳom" applied to homicide has the significance given to it by its connection with sword (Sanh. vii. 3, 52b; Mek., Mishpaṭim, 4).

To the three modes of capital punishment explicitly mentioned in the Pentateuchal laws, rabbinic law adds a fourth; viz., strangulation. In post-Biblical jurisprudence this is the penalty incurred by the perpetrator of any one of the crimes to which the Pentateuch affixes death, without specifying the mode of death and where no conclusions from Gezerah shawah can be deduced. The Rabbis argue thus: No death-sentence pronounced in the Bible indefinitely may be construed with severity; on the contrary, it must be interpreted leniently. And since the Rabbis viewed strangulation as the easiest of deaths, they decided that the undefined death-sentence of the Pentateuchal code means strangulation. Moreover, the Bible frequently speaks of death sent "by Heaven" for certain sins (for example: Gen. xxxviii. 7, 10; Lev. x. 7, 9); and as the death visited by Heaven leaves no outward mark, so must the death inflicted by a human tribunal leave no outward marks, and that is possible only in an execution by strangulation (Mek., Mishpaṭim, 5; Sifra, Ḳedoshim, ix. 11; Sanh. 52b).

By strangulation the following six crimes are punished: 1. Adultery (Lev. xx. 10; Deut. xxii. 22; Sanh. xi. 1, 52b; Sifra, Ḳedoshim, ix. 11; Sifre, Deut. 241; see Adultery ). 2. Bruising a parent (Ex. xxi. 15; Sanh. xi. 1, 84b; Mek., Mishpaṭim, 5). 3. False prophecy (Deut. xviii. 20; Sanh. xi. 1, 5, 89a; Sifre, Deut. 178). 4. Insubordination to supreme authority; "Zaḳen mamre," (Deut. xvii. 12; Sanh. xi. 1, 87a; Sifre, Deut. 155). 5. Kidnaping (Ex. xxi. 16; Deut. xxiv. 7; Sanh. xi. 1, 85b; Mek., Mishpaṭim, 5; Sifre, Deut. 273; see Abduction ). 6. Prophesying in the name of heathen deities (Deut. xviii. 20; Sanh. xi. 1, 5, 89a; Sifre, Deut. 178).

Of the four modes of capital punishment—stoning, burning, slaying, and strangulation—the first is considered by the majority of Rabbis the severest; the last, the mildest (Sanh. vii. 1, 49b et seq. ). Hence when convicts condemned to different modes of capital punishment become intermixed beyond the possibility of identification and classification, all of them suffer the sentence carrying with it the death named lowest in the order cited above (Sanh. ix. 3, 80b). On the other hand, when one is found guilty of several crimes of different grades of punishment, he will suffer the severest death to which he is liable (Sanh. ix. 4, 81a; compare Tos. Yom-Ṭob to Mishnah).

Mode of Judgment.

Capital punishment in rabbinic law, or indeed any other punishment, must not be inflicted, except by the verdict of a regularly constituted court (Lesser Sanh.) of three-and-twenty qualified members (Sanh. i. 1; Sifre, Num. 160), and except on the most trustworthy and convincing testimony of at least two qualified eye-witnesses to the crime (Deut. xvii. 6, xix. 15; Soṭah vi. 3; Sifre, Num. 161; ib. Deut. 150, 188; Sanh. 30a) who must also depose that the culprit had been forewarned as to the criminality and the consequences of his project (Sanh. v. 1, 40b et seq. ; see Hatraah ). The culprit must be a person of legal age and of sound mind, and the crime must be proved to have been committed of the culprit's free will and without the aid of others ( see Abetment ); and if any one wilfully kills him before conviction, a charge of murder will lie against such perpetrator (Tosef., B. Ḳ. ix. 15; Sifre, Num. 161; compare 'Ar. i. 3, 6b). Nor may an execution be deferred, except in the case of the "Zaḳen mamre" (Sanh. xi. 4), or of a woman about to be delivered of a child ('Ar. i. 4), nor may it be carried out on a day sacred to religion (Mek., Mishpaṭim, 4; ib. Wayyaḳhel; Yeb. 6b; Sanh. 35b). On the day that the verdict is pronounced, the convict is led forth to execution (Sanh. 34a). Looking upon the sinner as upon the victim of folly (Soṭah 3a), and considering death an expiation for misdeeds (Ber. 60a; Sanh. vi. 2; see Atonement ), the Rabbis would not permit the protraction of the interval between sentence and execution, which they considered as the most terrible period in the convict's existence. These considerations prompted them to afford the convict every possible alleviation of the pains and sufferings concomitant with the execution, and to direct the execution itself so as to prevent the mutilation of the body, or to reduce such mutilation, where it is unavoidable—as in stoning or slaying—to a minimum. The Pentateuchal law (Lev. xix. 18) prescribes, "Thou shalt love thy neighbor as thy-self"; and the Rabbis maintain that this love must be extended beyond the limits of social intercourse in life, and applied even to the convicted criminal who, "though a sinner, is still thy brother" (Mak. iii. 15; Sanh. 44a): "The spirit of love must be manifested by according him a decent death" (Sanh. 45a, 52a).

Execution of Sentence.

As the convict is led forth to the place of execution, which is located outside of the city limits and at some distance from the court-house (Sanh. vi. 1, 42b), a flag-bearer is stationed at the entrance to the court, and farther on a rider is placed, while a herald marches in front of the procession, proclaiming the name of the convict, his crime, when and where committed, and the names of the witnesses on whose evidence he was convicted, at the same time inviting any and every one in possession of evidence favorable to the convict to come forward and declare it—the judges remaining in session throughout the process of the execution and fasting all that day (M. Ḳ. 14b; Sanh. 63a). If favorable evidence comes to light, the flag-bearer gives the signal, and the rider turns the procession back to the court where the new evidence is dulyconsidered. Indeed, the convict's own declaration that he can prove his innocence, or mitigating circumstances, cause a stay until he is heard. And even where he fails to effect a reversal of sentence by his first attempt, there is still hope left for him. He may repeat the attempt several times, two scholars accompanying him for the purpose of hearing him and judging whether further delay should be permitted. On arriving in the neighborhood of the scaffold, he is exhorted to make confession of his sins, though not specifically of the crime for which he is to suffer death ( see Confession of Sin ). Thereupon he is given to drink a mixture of wine and olibanum, that he may become stupefied and not realize the painful close of his earthly career (Sem. ii. 9; Sanh. 43a; compare Mark xv. 23; contrast Matt. xxvii. 34). When he is brought still nearer to the fatal place, he is divested of his clothes and covered in front, and, if a woman, in front and behind (according to the adopted opinion, a woman was not divested at all). In this state the convict was led on to the spot (Sanh. vi. 1-3, 42b-45b; Tosef., Sanh. ix. 6; Sifra, Emor, xix. 3; Sifre, Deut. 221). Then the prosecuting witnesses, who are the only legal executioners known to Biblical and rabbinic laws (Deut. xvii. 7; Sifra, Emor, xix. 3; Sifre, Deut. 89, 151; Sanh. 45b), proceed to carry out the sentence which their evidence has brought about. That is done in the following manner:

The "Four Deaths."

Stoning ( ): With reference to two offenders subject to this penalty, the Pentateuch says, "Thine hand shall be first upon him to put him to death, and afterward the hand of all the people" (Deut. xiii. 10 [A. V. 9]), and again ( ib. xvii. 7), "The hands of the witnesses shall be first upon him to put him to death, and afterward the hands of all the people." Rabbinic law follows this injunction literally, but confines its consummation within narrow limits. The convict having been placed on a platform twice his height, one of the witnesses throws him to the ground. If the concussion does not produce instant death, the second witness hurls a heavy stone at his chest; and only when this also proves insufficient to end his misery, the bystanders throw stones at the prostrate body until death ensues (Sanh. vi. 4; 45a et seq. ; Sifra, Emor, xix.; Sifre, Num. 114; ib. Deut. 89, 90, 149, 151).

Burning ( ): The Pentateuch simply ordains that the criminal "shall be burnt with fire" (Lev. xx. 14, xxi. 9), and a case is reported from the last days of the Second Temple, where a guilty daughter of a priest was actually burned on a pyre. However, the reporter of the case stated that he had witnessed it during his minority; and as the testimony of a minor is not valid, no rule of procedure could be based thereon. Indeed, the Rabbis declared that a court ordering such an execution was ignorant of traditional law, and a later teacher was of opinion that the court referred to consisted of dissenting Sadducees. According to rabbinic law, an execution by burning means this: The witnesses secure the convict, then force his mouth open by means of a stout cord (wrapped in soft cloth, to prevent the discoloration of the convict's neck) being tightly drawn around his neck, when molten lead or, according to another opinion, a mixture of lead and tin, is poured down his throat and burns his vitals. (Sanh. vii. 2, 52b; Tosef., Sanh. ix. 11; Yer. Sanh. vii. 24b).

Slaying ( ): The convict having been fastened to a post, his head is severed from the body by a blow with a sword. Splitting the body or piercing it is not permitted; neither is it allowed to perform decapitation on a block (Sanh. vii. 3, 52b; Mek., Mishpaṭim, 4; Sifre, Deut. 94). See Beheading .

Strangulation ( ) is effected by slinging around the convict's neck a stout cord, wrapped in soft cloth, which the executioners draw in opposite directions, until all breath leaves his body and he dies (Sanh. vii. 3, 52b; Mek., Mishpaṭim, 5; Sifra, Ḳedoshim, ix. 11).

No execution is attended with posthumous indignities, except that the usual mourning ceremonies are not observed (Sifra, Shemini, Introduction, 28; Sem. ii. 7; Sanh. vi. 6), and in the case of the idolater and of the blasphemer hanging is superadded, provided the criminal is not a woman. The exposure of the body, however, must not be protracted. The dead convict's hands are joined above his head, and by them he is suspended; but while one of the executioners is still engaged in fastening the cords, the other must begin to untie them. As to the gibbet, it must not be a natural or permanent one, like a tree, but an artificial arrangement, easily removable; and when once used, must be buried out of sight (Sanh. vi. 4, 46b; Sifre, Deut. 221).

For the burial of convicts two special cemeteries are provided: one in which those are buried who have been executed either by stoning or by burning, and another for those slain or strangled. The dry bones are eventually disinterred, and placed in the general burial-grounds (Sanh. vi. 5, 6, 47b; Tosef., Sanh. ix. 8, 9; Yer. Sanh. vi. 23d).

No sentence carries with it any change in the civil status of the convict's family. The Pentateuchal law provides (Deut. xxiv. 16), "The parents shall not be put to death for the children, neither shall the children be put to death for the parents; every man shall be put to death for his own sins," and rabbinic jurisprudence follows this principle both to the letter and in spirit. Nor is a sentence attended by confiscation of the convict's goods. All his possessions descend to his legal heirs (Tosef., Sanh. iv. 6; Sanh. 27b, 48b; see Confiscation ).

Critical Note.

Rabbinic jurisprudence is developed on the basis of the letter and the spirit of the Bible, particularly of the Pentateuchal codes (Josh. i. 8, viii. 31; Josephus, "Contra Ap." i. 8; Ḥag. 10b, 14a; Ned. 22b; Mak. 23b; compare Darmesteter, "The Talmud," translation by H. Szold, pp. 62 et seq. ); but that development naturally partook of the spirit of the ages during which it took place—from Ezra's times to the final redaction of the Gemara (559 B.C. to 550 C.E. ). This was especially the case with the development of the civil and ritualistic laws, which governed Jewish life long after the Roman conquest of Palestine. But also in criminal law, involving capital punishment, the right to administer which had been taken from the Sanhedrin decades before the fall of Jerusalem (Sanh. 41a; Yer. Sanh. i. 18a,vii. 24b), the Rabbis delved deeply, elaborating the details thereof with a view to their application in the hoped-for Messianic days ( , Sanh. 51b; Yeb. 45a) or for the satisfaction accruing from study ( , ib. ). In this department there are therefore some laws which are mere legal opinions or theoretic ratiocinations which were never applied in practise. Such, for example, are the laws relating to the "rebellious son" and to "communal apostasy" (Tosef., Sanh. xi. 6, xiv. 1; Sanh. 71a). However, the bulk of rabbinic rules, even those concerning capital punishment, bear the stamp of great antiquity, inasmuch as they are based on actual precedent or on old traditional interpretation. Josephus, whose main authority for the first half of his "Antiquities" doubtless was the Bible itself, supplements his outlines of "the polity settled by Moses" ("Ant." iv. 8, §§ 1-45) with traditions current in his day. Some of these traditions agree with the corresponding Halakot embodied in the Talmudim and halakic Midrashim at a much later date. A few examples must suffice. In the true spirit of traditional law, Josephus ("Ant." xii. 9, § 1) says, "The purposing of a thing, but not actually doing it, is not deserving of punishment" (compare Tosef., Mak. v. [iv.] 10; Sanh. 63b; Mak. 16a); nevertheless he construes the Pentateuchal law regarding the confuted witness (Deut. xix. 16-19) as decreeing punishment where the sentence brought about by the confuted testimony has not been executed. He says ("Ant." iv. 8, § 15), "If any one be believed to have borne false witness, let him, when he is convicted, suffer all the very same punishments which he against whom he bore witness was to have suffered ." This coincides with the rabbinic Halakah (Mak. i. 6; Sifre, Deut. 190; see Alibi ), as opposed to the Sadducean ruling that the confuted witness is punishable only after the execution of the sentence which his falsehood has brought about ( ib. ; compare S. Mendelsohn, "Criminal Jurisprudence of the Ancient Hebrews," p. 136). Also the Pentateuchal law (Ex. xxi. 21, 22) regarding an assault on a woman with child, Josephus ( l.c. § 23) interprets in the spirit of the Halakah (Mek., Mishpaṭim, 8; B. Ḳ. 42a; Sanh. 74a; compare Geiger, "Urschrift," pp. 436 et seq. ; Pineles, "Darkah shel Torah," § 160). Likewise his esteeming guiltless the slayer of the thief, "although he were only breaking in at the wall" ( l.c. § 27), is in consonance with the traditional interpretation of the Halakah (Mek., Mishpaṭim, 13; Sanh. 72a; Yer. Sanh. viii. 26c); and so is his reduction of the number of stripes (Deut. xxv. 1-3) from forty to "forty save one" ( l.c. §§ 21, 23) in accord with the Halakah (Mak. iii. 10, 22b; Sifre, Deut. 186; compare II Cor. xi. 24).

As to the spirit of later rabbinic legislation, it clearly appears that there was a tendency to reduce capital punishment to a minimum, if not to abolish it altogether. That capital punishment was a rare occurrence in the latter days of the Jewish commonwealth is patent from the statement in the Mishnah that a court was stigmatized as "murderous" if it condemned to death more than one human being in the course of seven years. Indeed, Eleazar b. Azariah applied the same epithet to a court that executed more than one man in every seventy years; and his famous colleagues, Tryphon and Akiba , openly avowed their opposition to capital punishment, saying, "Had we belonged to the Sanhedrin [during Judea's independence], no man would ever have been executed," as they would always have found some legal informalities by which to make a sentence of death impossible (Mak. i. 7a).

J. Sr. S. M.