An act forbidden by human law and punished by human authority, in contrast to sinful acts which are thought to be evil in the eyes of God.
In the Mosaic legislation the principal crimes against person and property—murder, mutilation, and theft—are punished at the instance of the party injured, or of his kinsmen. The murderer is pursued and brought to justice, or is killed outright (Num. xxxv. 21) by the Avenger of Blood; mutilation and other injuries to the person are paid for in money (see Assault and Battery); the thief is condemned to make double restitution, and is enslaved if unable to pay.
But there were many offenses not so much directed against any one person as against the whole nation of Israel. They included all those grosser violations of God's declared will which were thought to bring down His wrath and vengeance upon the nation: such acts as idolatry, Sabbath-breaking, blasphemy of the sacred name, incest, adultery (for which the husband had no such civil redress as is afforded by common law). The witnesses to the evil deed were called upon by the Lawgiver, not only to prosecute the offender, but to help in the execution of the sentence (Deut. xiii. 7-11, xvii. 2-7). The duty of witnesses to prosecute is still the law of England, and those who happen to witness a criminal act are often put thereby to great expense. Besides death and banishment to the cities of refuge, the Biblical law has also the punishment of stripes, which are never to exceed forty in number (Deut. xxv. 3). The infliction of stripes is awarded by a judge, not by the congregation.Crimes Expiated by Fines.
The crimes which were expiated by a fine, or compensation in money, embraced not only, as said above, larceny, robbery, and mayhem, but also even the ravishing of a maiden "which is not betrothed" (Deut. xxii. 28, 29). The sum which is awarded against the owner of an ox which kills a free man or woman, or a bondman or bondwoman, provided the owner had been properly forewarned of its vicious disposition (Ex. xxi. 29-32), is expiation for this kind of manslaughter. For the commission of a forbidden act through ignorance, a sin-offering is prescribed (Lev. iv. 1-3); for certain dishonest actions a sin-offering, together with restoration of the thing wrongfully withheld, plus one-fifth its value, is imposed. But these penalties are self-inflicted. The repentant sinner brings them upon himself by confession, and with a view to divine forgiveness (Lev. v.); while punishment in the ordinary sense is only adjudged upon the testimony of witnesses.Motives for Punishment.
In the Mosaic legislation there are two practical motives assigned for the infliction of death for offenses against God or against the state: one, to deter others from offending in like manner; the other, to root out the evil elements in the nation and to keep the poison from spreading. Sometimes both motives are named together. Thus the man who rebels against the judgment of the high priest or supreme judge must die: "and thou shalt put away the evil from Israel. And all the people shall hear, and fear, and do no more presumptuously" (Deut. xvii. 12, 13); while in the case of the idolater condemned to death, we read: "So thou shalt put away the evil from the midst of thee" (ib. 7). This latter motive is brought out strongly in dealing with idolaters, who are regarded as "a root that beareth gall and wormwood" (ib. xxix. 17). The punishment by stripes, if not meant to correct and reform the offender, was at least so regulated and limited as not to degrade him.
But there was a view of crime older than the Pentateuch, and firmly embedded in the hearts of people and rulers. Vengeance should not fall on the evil-doer only, but on all his children also—on his father, if alive, and on all his father's issue: only thus can God's wrath be appeased. The Pentateuch protests against this savage conception: "Fathers shall not be put to death for sons, and sons shall not be put to death for fathers; every one shall be put to death for his own sin" (Deut. xxiv. 16, Hebr.). As an illustration of actual practise based upon this conception, there is the act of Joshua, who—when Achan had put away gold and silver and fine raiment out of the spoils of Jericho, which had been doomed to destruction—not only has Achan put to death, but also his sons and his daughters. In like manner David, on the complaint of the Gibeonites against the dead king Saul, avenges them by hanging five of Saul's grandsons (II Sam. xxi. 1-9). But when, seven generations after David, Joash, King of Judah, was murdered, Amaziah, his son and successor, caused only the murderers to be put to death, and did not punish their sons, "according to that which is written in the book of the law of Moses" (II Kings xiv. 6). The declaiming of the prophets Jeremiah (xxxi. 29) and Ezekiel (xviii. 2) against the proverbial saying, "the fathers have eaten sour grapes, and the teeth of the children are set on edge," shows that a desire to punish the children for the sins of the fathers was still alive among the people.
While English law has never inflicted death by the hands of the hangman on the traitor's or felon's children, yet as late as in the reign of James II. the forfeiture of the convict's property was enforced with such rigor that his helpless children often faced a slower death by starvation. Like cruelty prevailed in France and Spain. And it was equally severe in the old seats of Israel, except where and when the Torah prevailed (compare Confiscation and Forfeiture).
The Bible places the view that certain wrongful acts, such as murder, shall be punished by society, at least as far back as the days immediately following the Flood, when the sons of Noah were told: "Whoever sheddeth the blood of man, by man his blood shall be shed" (Gen. ix. 16); and Cain expresses the fear that, for the murder which he has committed, "every one that findeth me shall slayme" (Gen. iv. 14); in other words, it was the duty of society, and even of the beasts of the field, to avenge the blood of Abel.Talmudic Conception.
In the Mishnah we find that some "institutions" of the sages are enforced by penalties; but, generally, only those acts that are sinful, because forbidden in the Pentateuch, meet severe punishment. Some acts, plainly forbidden by the Law, are left to "death by the hand of Heaven," such as the intrusion of non-Levites in the place assigned to the Levites in the service of the Temple (compare Sanh. ix. 6 with Num. i. 51, xviii. 7, as reconciled in Sanh. 84a). Even civil redress for wrongful acts is sometimes withheld, where the application of the law is not clear, and vengeance is left to the powers above (B. M. iv. 2).
The criminal jurisprudence of the Mishnah may be regarded as almost modern in its bearings. The avenger of blood has dropped out; the idea of making fathers and sons suffer for each others' guilt lies now so far in the dim past, that the sages give to the text in Deuteronomy (xxiv. 16)—which forbids such savagery, the law of individual responsibility being sufficiently covered by the concluding words, "every man shall be put to death for his own sin"—this entirely new meaning: "fathers shall not be condemned on the testimony of their sons" (Sanh. 28a). The "congregation" which is to judge of matters of life and death becomes a court of twenty-three learned judges. An execution by stoning or burning is regulated so as to inflict the least possible pain (see Capital Punishment). All possible advantages are given to the accused in order to temper the severity of the Pentateuchal law (see Accusatory and Inquisitorial Procedure; Acquittal in Talmudic Law).Classification of Crimes.
Offenses are classified according to the gravity of the punishment: those punished by stoning, by burning, by beheading, and by strangling coming first; next in gravity are those punishable by stripes, the most serious being those for which the Mosaic law prescribes excision("he shall be cut off from his people"; see Karet); then come those wrongful acts which the written law redresses by fine, forfeiture, or sacrifice, it being understood that whenever the Scripture imposes a duty or a penalty, stripes are excluded. There can be no stripes for theft, for double, fourfold, or fivefold compensation is expressly named as the penalty for the act. Nor can a battery be avenged by stripes, for the Law says "eye for eye," that is, compensation for the loss of the limb or organ; "bruise for bruise" that is, compensation for the pain; and so for other violence done (Ket. 32b), though the offense entailed both pain and loss of money. It is not easy to determine the proper classification of an involuntary killing, with its penalty of banishment; but it comes, like murder, before a court of twenty-three judges.
The sages believed that death under the sentence of the law, provided the condemned man confessed his guilt, was full atonement, and that he would have his share in the world to come (Sanh. vi. 2); that the infliction of stripes was equivalent to the excision with which the law threatens the offender (Mak. iii. 15), though the latter view is disputed on technical grounds (ib. 23b; Meg. 7b). But where the only redress is a money compensation to the injured party, the sages taught that payment alone was not sufficient to secure the forgiveness of God, unless the guilty party had first sought to appease his injured neighbor (see Assault and Battery).Substitutes for "The Four Deaths."
A suggestion occurs more than once in the Talmud (Sanh. 37b; Ket. 30a et seq.) that, though Israel has lost its freedom, and its judges can no longer wield the sword of justice, "the four capital punishments have not ceased. He who deserves stoning will fall from the roof, or a wild beast will trample him down; he who deserves burning will fall into a burning house, or be bitten by a poisonous serpent . . . He who deserves the headsman's sword will be delivered to the [heathen] government, or will fall among robbers." Death by the sword was the punishment for murder, and it thus appears that the Rabbis were not unwilling to see Jewish murderers put to death under the laws of Rome or of Persia. The list of offenses punished by death is given in the Mishnah (Sanh. vii., viii., ix., xi.) under the headings of "the stoned," "the burnt," "the beheaded," "the strangled." There are 18 offenses involving the punishment of stoning; 5, of burning; 2, of beheading; 6, of strangulation (compare Capital Punishment).Irregular Justice.
Besides the regular forms of punishment for crime, Jewish law recognizes certain irregular methods. "If the thief be found breaking in and be smitten that he die, there shall be no bloodguiltiness for him" (Ex. xxii. 2, R. V.)
On the analogy of this Biblical case the Rabbis decide several others (see Burglary). In three cases the person on the point of committing a crime may be killed: where he pursues a neighbor in order to kill him; where he pursues a male to commit sodomy; and where he seeks to ravish a betrothed damsel; for Deut. xxii. 27 indicates the duty of all that hear her cry to help her. But it is not lawful to "save by death from sinning" in the case of the Sabbath-breaker, or of the idol-worshiper, etc. (Mish. Sanh. viii. 7). Where one is suspected of murder, and, though the testimony of the witnesses is not sufficient, the judges are convinced of his guilt, they should cause him to be locked up in a cell, on a scanty diet of bread and water (ib. ix. 5). The disputants in the Gemara on this passage are not agreed on the question how great the deficiency in such testimony might be and the judges still be justified in inflicting death by ill treatment and starvation. There had been no trials for murder during hundreds of years in the countries where these disputes took place.
He who steals one of the holy vessels, he who curses God, naming Him with an idol [the wording of the original is rather obscure], and he who co-habits with an idolatress—these are permitted to be killed by zealots. The right of zealots in the last of the three cases is evidently drawn from the example of Phinehas (Num. xxv. 6-8). Lastly, it issaid: "When a priest dared to serve in the Temple while unclean, his brethren the kohanim did not bring him before a court of justice, but the young men among them dragged him outside of the place of assembly and brained him with axes" (Mish. Sanh. ix. 6). See also Burglary; Capital Punishment; Corporal punishment; Karet; Criminal Procedure; Robbery.
- P. B. Benny, Criminal Code of the Jews. London, 1880;
- Duschak, Das Mosaisch-Talmudische Strafrecht, Vienna, 1869;
- Fassel, Das Mosaisch-Rabbinische Strafgesetz, Gross-Kanizsa, 1870;
- Forster, Das Mosaische Strafrecht, Leipsic, 1900;
- Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews, Baltimore, 1891;
- Rabbinowicz, Legislation Criminelle du Talmud, Paris, 1867.