Abetment:

By: S. Mendelsohn

In Homicide.

The legal term for encouraging, aiding, or instigating an illegal act. The abettor may take no part in the actual commission of the offense and yet be liable for the thought or intention involved in his relations to the actual offender. In capital, or even corporal, punishment Talmudic jurisprudence takes no cognizance of thoughts or words (Sanh. 63 a ). To be liable to capital punishment by Talmudic law, one must be the principal actor in the crime. Hence, when one counsels, commands, or procures another to perpetrate a capital crime, that other, and not the instigator, incurs the death penalty for the commission of the crime (Ḳid. 43 a ). For, although the abettor is morally as guilty as the principal, the law will take cognizance of the principal only, it being an axiom in Talmudic jurisprudence that "One can not be an agent in an illegal act" ( ib. 42 b , and elsewhere). Again: A is provided with a shield against deadly arrows when B shoots at him; but, as the arrow darts from the bow, C deprives him of the shield, and A is killed. Though C personally aids in the killing, neither B nor C can be capitally punished, the latter not having fired the missile which was the direct cause of A's death (Sanh. 77 b ; Maimonides, "Hilkot Roẓeaḥ," iii. 11). But even where one is a principal in the crime, but does not accomplish it by himself—as, for instance, being one of several persons who simultaneously fire deadly missiles at a man and kill him—no capital punishment can legally be visited on the participant. From the Biblical passage (Lev. xxiv. 17, Heb. ), literally translated, "If a man slayeth the whole life of a man he shall surely be put to death," the rabbis deduce the judicial maxim, "One person must slay the whole being" (Sifra, Emor, chap. xx.; Sanh. 78 a ); and since in the case before us no one has fulfilled this condition, no capital punishment can be inflicted on any single one of the parties to the crime (Sanh. l.c. ).

Capital Crimes.

As in homicide, so in all capital crimes Talmudic jurisprudence does not convict more than one person of a crime which can be accomplished by a single person. There is, however, this difference: In all other cases of capital crime, when the slightest requirement for conviction has not been fully complied with, the accused is declared "not guilty before the human tribunal," and is liberated. But in cases of bloodshed the law is more rigorous: whoever wilfully occasions unlawful loss of life is prevented from repeating the crime by being deprived of his liberty: the abettor in murder is imprisoned (Sanh. 81 b ; Maimonides, "Hilkot Roẓeaḥ," ii. 5, iv. 8). A notable exception to these rules is the case of the instigator to idolatry. The Jewish commonwealth was a theocracy, a politico-religious state ruled by God; hence, idolatry among the Jews was an offense against the state, and any attempt to incite people to apostasy was, in the eyes of the Jewish law, an attempt to overthrow the state; it was high treason against the Divine King. Therefore, even though there was no bodily action on the part of the instigator, and even when his efforts did not succeed in leading any one astray, he was capitally punished (Sanh. 61 a ; Maimonides, "Hilkot 'Ab. Zarah," v. 2). And his punishment was the same—death by stoning—whether he was simply a mesit , trying to seduce an individual, or a maddiaḥ , endeavoring to mislead a community (Mishnah, Sanh. vii. 4).

Penal Offenses.

The juridical maxim, "One can not be an agent in an illegal act," for "where the orders of the master conflict with those of the servant, whose orders must be obeyed?" (B. Ḳ. 56 a , Sanh. 29 a ) is applied by the rabbis to penal offenses as well as to capital crimes. Hence, when one suborns witnesses to defeat justice in a civil cause, and the witnesses are found guilty of testifying falsely, they, and not the suborner, are liable for the losses of the injured party. The suborner in such cases is declared "exempt from punishment at the instance of the human tribunal, but guilty before the court of heaven." In a case of mayhem involving damages and amercements, where, for instance, A procures B to commit an assault on C , not only will the court condemn B to pay all amercements accruing from theassault, but even if A had, prior to the assault, made himself responsible to his accomplice for all damages resulting therefrom, he is not bound to keep his promise. Moreover, where at his own solicitation A has a mutilation inflicted on himself by B , assuring B beforehand that no damages will be claimed, A has the legal right to claim, and B will be required by law to pay (B. Ḳ. 93 a ; see Rashi, ad loc. , and Maimonides, "Hilkot Ḥobel u-Mazziḳ," v. 11). In all these cases, the instrument of the offense has his option to do or not to do the bidding of the abettor: "If he so chooses, he obeys, and if he chooses otherwise, he obeys not" (B. M. 10 b ); and where there is option there can not be said to exist any agency, since the order of the master must supersede that of the servant. On the other hand, where the abettor has a legal right to command and to exact obedience, he will be held responsible for the misdeeds of his instrument. Thus, according to the Bible (Ex. xxii. 7), as interpreted by rabbinic law (Mishnah, B. M. vii. 8; Gem. ib. 93 a , 94 b ), the gratuitous bailee, if he has taken only ordinary care of the deposit, is not responsible for it even when lost by theft. Now A , being such a gratuitous bailee, orders his slave to abstract the deposit: when the plot is discovered, A is held responsible for the slave's deed, and is subjected to the laws concerning convicted thieves. In this case the slave was obliged to comply with the command of his master; therefore his act is considered to be the act of his abettor, or as the Talmud ( ib. 96 a ) expresses it, "The hand of the slave is like the hand of his master" ( ib. 10 b , 44 a ; "Shulḥan 'Aruk, Ḥoshen Mishpaṭ," § 292, 5, § 348, 8, Hagahot).

Civil Causes.

It is a principle in Talmudic jurisprudence, "One must not save himself at the expense of another" (B. Ḳ. 60 b et al. ). Accordingly, when one's premises are invaded by unlawful tax-gatherers, and he informs them of the whereabouts of another's property which he holds in bailment, his responsibility will depend on his circumstances. If he be known to be wealthy, the court will assume that the alien tax-gatherers were attracted by his goods; therefore, his pointing out the goods of another will be considered as an effort to save his own at the expense of another's, and he will be required to pay to the injured party compensatory damages. When, on the contrary, there is no reason for such an assumption, he being known to be a poor man, then the court will assume that the deposit was the attraction, and he will not be required to make good its loss. Again, when a place is invaded by pillagers, and one citizen points out to them the property of another, the informer's responsibility for the property carried off will depend on the presence or absence of duress. If force be used to compel him to reveal the hiding-place of the property, he will not be held responsible; but where no force is used on him, and he voluntarily exposes to the pillagers another's property, the court will adjudge him responsible for its loss. And even where force is used, the court will clear him only when his Abetment is confined to the bare pointing out; but where he personally hands over the property to the pillagers, he will be held responsible to its rightful owner. In case a man be expressly required to surrender his own property, and he reveals the whereabouts of his neighbor's, in addition to his own, after physical force had been exercised on him to wrest from him the disclosure regarding his own, even though he personally lays no hands on his neighbor's property he will still be required by law to make good his neighbor's losses (Mishnah, B. Ḳ. x. 5; Gem. ib. 116 b -117 b ; Maimonides, "Hilkot Ḥobel," viii. 1-8; "Shulḥan 'Aruk, Ḥoshen Mishpaṭ," § 388, 2-8, "Semag," § 70).

Ritual Matters.

The Bible says, "And if any one of the common people sin through ignorance, when he doeth any one of the prohibitions," etc. (Lev. iv. 27, Heb. ). From this the rabbis deduce the following two legal maxims with regard to ceremonial sins: "When one person commits a ceremonial sin, he is guilty; when two persons commit it, they are not guilty"; and the one is guilty "when he does the whole, but not when he does a part only" (Shab. 3 a , Yer. ib. i. 2 c ). A third legal maxim reads: "Abetment has no reality"; that is, is not considered (Shab. 93 a ). Now, if on a Sabbath day one transfers an inanimate object from private premises to the public thoroughfare, or vice versa , he is guilty of a violation of the Sabbath, and if the deed was the result of ignorance of the sanctity of the day, he is obliged to make a sinoffering (Mishnah, Shab. i. 1); but if two able-bodied men transfer an object which each of them could manage by himself, neither incurs guilt; each of them having perpetrated but half of the transgression. Only when the performance of the task requires the services of both does the Law declare both guilty. And when one of the two persons is able to accomplish the task by himself, while the other is not, the weaker accomplice goes free; his Abetment does not constitute a punishable act, inasmuch as the other could accomplish the task without his assistance, while he could not do so without the assistance of the other (Mishnah, Shab. x. 5; Gem. 92 a ). The following is an exception to these rules: In case an Israelite has the corners of his hair cut away (compare Lev. xix. 27), both the barber, if he also is an Israelite, and the one whose hair is cut are punishable. In this case, while the subject of the transgression does virtually nothing, as he merely offers himself to the barber's shears, he is nevertheless amenable for Abetment (Sifra, Ḳedoshim, chap. vi.; Naz. 57 b ; Tos. ib. s.v. "R. Adda").

Physical or Moral Guilt.

Finally, it should be stated that in rabbinic law, in all the cases cited and in all similar ones, the abettor is held not guilty before the human tribunal, but guilty before the tribunal of heaven (Ḳid. 42 b ; B. Ḳ. 56 a et al. ); in other words, the perpetrator is not guilty legally, but is guilty morally. The same is the case with any one in whose power it is to prevent the violation of any law, but who fails to exert his influence in that direction. On this head the Talmud says: "Whosoever has it in his power to prevent a transgression by his household, and does not prevent it, is answerable for his household; if he has like power over a community, he is answerable for the community; and where his power extends over the whole world, he is answerable for the whole world" (Shab. 54 b ). Elsewhere the Talmud construes the Biblical saying (Lev. xxvi. 37) literally, "And they shall stumble, a man over his brother," as "They shall stumble, a man on account of the sins of his brother"; and the rabbis add: "This proves that all men are morally responsible for one another" (Sanh. 27 b ). On the other hand, where merit is concerned, rabbinic ethics teaches: "He who induces others to do a good deed stands in the sight of heaven higher than the one that does the deed" (B. B. 9 a ; Num. R. chap. xiii.; see also Accessories ).

S. M.