HEBREW CRIMINAL LAW—MODE OF TRIAL AND EXECUTION IN CAPITAL CASES
THE administration of Hebrew criminal law was marked by lofty conception of right and wrong, and was pervaded by a noble sentiment of justice and humanity. From the framing of the Decalogue to the latest years of Jewish nationality, each succeeding generation witnessed some humane and merciful modification of existing rules. Talmudic interpretation invented a series or collection of sayings that gave form and character to the whole body of later Hebrew law. These maxims were intended to mitigate the rigors of the Mosaic Code and to establish safeguards against negligence or injustice to the defendant in criminal trials. Indeed, every possible precaution was taken to render impossible the wrongful conviction of an accused person. The student of Hebrew law is at times astonished by the excessive caution inculcated in criminal procedure. Certain cautionary rules are no less than pedantic, and may be justly and aptly styled Judaical. The judges leaned always to the side of the defendant and gave him the advantage of every possible doubt. They went a step farther and sought pretext after pretext that would result in an acquittal. A sense of awful responsibility weighed upon the hearts and consciences of the judges. The services of the synagogue were not conducted with deeper fervor or greater religious solemnity than were the proceedings of a capital trial in the great Judgment Hall of the Sanhedrin. Certain sacred maxims flamed forever like beacon lights along the pathway of the members of the court during the solemn deliberations. "A judge," says the Talmud, "should always consider that a sword threatens him from above, and destruction yawns at his feet." The ancient adage, "the pen of the law fears the thunder of Heaven," though of Chinese origin, is Hebraic in spirit. "Thou shalt do no unrighteousness in judgment" was the leading aphorism of Hebrew jurisprudence. Among the earliest traditions of the Fathers, we read this maxim: "When a judge decides not according to truth, he makes the majesty of God to depart from Israel. But if he judges according to the truth, were it only for one hour, it is as if he established the whole world, for it is in judgment that the divine presence in Israel has its habitation." Hebrew horror of capital punishment and dread of taking human life are well expressed in the celebrated maxim of the Mishna: "The Sanhedrin, which so often as once in seven years, condemns a man to death, is a slaughter-house."[164] And more striking and startling still is the terrible sentence of Rabbi Meir: "What doth God say (if one may speak of God after the manner of men) when a malefactor suffers the anguish due to his crime? He says, My head and my limbs are pained. And if he so speaks of the suffering even of the guilty, what must he utter when the righteous is condemned?" The whole spirit of Talmudic caution is well illustrated by the principal rule of the Pirke Aboth, which says: "Be cautious and slow in judgment, send forth many disciples, and make a fence round the law."[165]
In addition to the maxims above mentioned, which were more religious than legal, four cardinal rules of criminal procedure—"strictness in the accusation, publicity in the discussion, full freedom granted to the accused, and assurance against all dangers or errors of testimony"[166]—molded the judgment and guided the consciences of Hebrew judges. These sayings of the Fathers and maxims of the law were the touchstones of all their judicial inquiries and meditations at the trial of capital cases. With prayer in their hearts and these maxims upon their lips, they applied themselves to the solemn duties of their office.
A most interesting passage in the Mishna draws a striking contrast between capital trials and those involving questions of money only. The relevancy of the passage to this chapter is so great that it is deemed best to quote it entire:
Money trials and trials for life have the same rule of inquiry and investigation. But they differ in procedure in the following points: The former require only three, the latter three-and-twenty judges.
In the former it matters not on which side the judges speak who give the first opinions; in the latter, those who are in favor of acquittal must speak first.
In the former, a majority of one is always enough; in the latter, a majority of one is enough to acquit, but it requires a majority of two to condemn.
In the former, a decision may be quashed on review (for error), no matter which way it has gone; in the latter, a condemnation may be quashed, but not an acquittal.
In the former, disciples of the law present in the court may speak (as assessors) on either side; in the latter, they may speak in favor of the accused, but not against him.
In the former, a judge who has indicated his opinion, no matter on which side, may change his mind; in the latter, he who has given his voice for acquittal may not change.
The former (money trials) are commenced only in the daytime, but may be concluded after nightfall; the latter (capital trials) are commenced only in the daytime, and must also be concluded during the day.
The former may be concluded by acquittal or condemnation on the day on which they have begun; the latter may be concluded on that day if there is a sentence of acquittal, but must be postponed to a second day if there is to be a condemnation. And for this reason capital trials are not held on the day before a Sabbath or a feast day.[167]
The principal features of a Hebrew capital trial before the Great Sanhedrin were: (1) The Morning Sacrifice; (2) the Assembling of the Judges in the Lishkath haggazith, or the Hall of Hewn Stones; (3) the Examination of Witnesses; (4) the Debates and Balloting of the Judges on the guilt or the innocence of the accused. These successive steps will be briefly considered in this chapter.
The Morning Sacrifice.—It is not positively known what legal connection, if any, the morning sacrifice had with the trial of a capital case before the Great Sanhedrin at Jerusalem. Several writers contend that there was no essential legal connection; that the sacrifice was offered at the break of day whether a capital case was to be tried or not; and that the court was not dependent upon this religious observance for jurisdiction in the trial of criminal cases. Other writers hold opposite views, and contend that the morning sacrifice was essential to give jurisdiction to the court. MM. Lémann consider it an error in the trial of Jesus that the morning sacrifice was not offered before the commencement of proceedings.[168] Certain passages from the Mishna very strongly support this second view: that the court could not legally convene until the morning sacrifice had been offered. "The Sanhedrin sat from the close of the morning sacrifice to the time of the evening sacrifice."[169] ... "Since the morning sacrifice was offered at the break of day, it was hardly possible for the Sanhedrin to assemble until an hour after that time."[170] These passages seem to indicate that the morning sacrifice was necessary before the court could legally convene. This question will be found more fully discussed under Point V of the Brief in this volume. The method of offering the morning sacrifice was as judicial in its precision as it was religious in its solemnity.
The Assembling of the Judges.—At the close of the morning sacrifice, the members of the court entered the judgment hall in solemn procession. They took their seats, "turbaned, on cushions or pillows, in oriental fashion, with crossed legs, and unshod feet, in a half-circle."[171] The high priest sat in the center with the other members of the court to the right and left of him. "His head was crowned with a turban of blue inwrought with gold. On his bosom hung the priestly breastplate, in which glittered twelve precious stones, emblems of the twelve tribes of Israel. A flowing robe of blue, gathered about his waist by a girdle of purple, scarlet, and gold embroidery, enveloped his person and set off the pure white linen of his capacious sleeves. The buttons of this costly robe were onyx stones. His slippered feet were half concealed beneath the long fringe of his pontifical vestments, which were curiously embroidered with pomegranates in gold and scarlet and crimson. No Roman Catholic pontiff ever wore robes more resplendent than those in which the high priest was attired on public and state occasions. Immediately before him sat the scribes or clerks of the court. The one on his left hand wrote down whatever testimony was adduced against the accused; what votes were cast for his condemnation. The one on the right transcribed what appeared in his favor."[172]
According to most writers, including Dr. Lyman Abbott, only two scribes were present having seats at each end of the semicircle. According to Benny, however, "three scribes were present; one was seated on the right, one on the left, the third in the center of the hall. The first recorded the names of the judges who voted for the acquittal of the accused and the arguments upon which the acquittal was grounded. The second noted the names of such as decided to condemn the prisoner and the reasons upon which the conviction was based. The third kept an account of both the preceding, so as to be able at any time to supply omissions or check inaccuracies in the memoranda of his brother reporters."
The prisoner was placed in front of the high priest, in a conspicuous position, where he could see all and could be seen by all.
Thus organized and arranged, the Sanhedrin began the work of the day.
Examination of Witnesses.—The examination of witnesses, who were also accusers, marked the beginning of proceedings. It is doubtful if the indictment against criminals was in writing. The first witness who was to testify was led into an adjoining room and solemnly warned. He was asked questions similar to the following: Is it not probable that your belief in the prisoner's guilt is derived from hearsay or circumstantial evidence? In forming your opinions concerning the guilt of the accused, have you or not been influenced by the remarks of persons whom you regard as reputable and trustworthy? Are you aware that you will be submitted to a most searching examination? Are you acquainted with the penalty attached to the crime of perjury?
After this preliminary warning, conveyed in these questions, had been given, the most learned and venerable of the judges administered to the witness the following impressive adjuration:
Forget not, O witness, that it is one thing to give evidence in a trial as to money, and another in a trial for life. In a money suit, if thy witness-bearing shall do wrong, money may repair that wrong. But in this trial for life, if thou sinnest, the blood of the accused, and the blood of his seed to the end of time, shall be imputed unto thee.... Therefore was Adam created one man and alone, to teach thee that if any witness shall destroy one soul out of Israel, he is held by the Scripture to be as if he had destroyed the world; and he who saves one such soul to be as if he had saved the world.... For a man from one signet-ring may strike off many impressions, and all of them shall be exactly alike. But He, the King of the kings of kings, He the Holy and the Blessed, has struck off from His type of the first man the forms of all men that shall live; yet so, that no one human being is wholly alike to any other. Wherefore let us think and believe that the whole world is created for a man such as he whose life hangs on thy words. But these ideas must not deter you from testifying from what you actually know. Scripture declares: "The witness who hath seen or known, and doth not tell, shall bear his iniquity." Nor must ye scruple about becoming the instrument of the alleged criminal's death. Remember the Scriptural maxim: "In the destruction of the wicked, there is joy."
At the close of this solemn exhortation, the examination of the witness commenced. The Hakiroth, seven questions prescribed by law, touching the identity of the prisoner and fixing the elements of time and place, were asked. They were as follows: Was it during a year of jubilee? Was it an ordinary year? In what month? On what day of the month? At what hour? In what place? Do you identify this person?
These questions being satisfactorily answered, the next step was a rigid examination into the facts and circumstances attending the commission of the crime and the connection of the accused therewith. This process of examination and cross-examination was termed the Bedikoth and embraced all questions not included in the Hakiroth which tended to establish the guilt or innocence of the prisoner at the bar.
When the witnesses for the Commonwealth of Israel had been examined, witnesses for the defendant were heard. The accused was also urged to say anything he wished in his own behalf. As we have before pointed out, the Hakiroth questions as to time and place could be rebutted only by establishing an alibi against the witnesses for the state. If such an alibi was proved, the defendant was acquitted and at once discharged. A contributor to the "Jewish Encyclopedia," discussing this point of procedure, says: "It has been shown under Alibi how a 'set' of witnesses may be convicted as 'plotters' by another set or sets proving an alibi on them. But the opposite party may prove an alibi on the convicting set or in some other way show that the facts testified to by the first set were impossible or untrue. Under such circumstances, a modern judge or jury would weigh the credibility of the witnesses and the probability of their stories and decide between them accordingly. The sages did not trust themselves or their successors with this discretion. If there were no indicia or fraud, they held that as some one was evidently lying they could not decide which of them it was, and that there was no evidence on the point."[173] The result was an acquittal.
If material contradictions in the testimony of the witnesses were shown by the Bedikoth, the trial was at once terminated and the accused was free. The failure of any witness to answer satisfactorily any of the seven questions above mentioned entitled the accused to immediate acquittal. Any material disagreement between the two or more witnesses required by the law in answer to any of these questions likewise entitled the prisoner to an immediate discharge. If the prosecuting witnesses relied upon documentary, circumstantial or hearsay evidence to convict, their testimony was at once rejected and the defendant was released.
But if the accused failed to establish an alibi against the prosecuting witnesses in the matter of the Hakiroth; and if the Bedikoth developed evidence fairly consistent and uncontradictory; and if the testimony of the witnesses was purely oral, that is, was not documentary, hearsay or circumstantial, then there was legally admissible evidence to lay before the Sanhedrin. The competent witnesses who could render relevant testimony were then led, one at a time, before the general body and required to testify.
The Debates and Balloting of the Judges.—All the evidence, pro and con, having been adduced, the tribunal began a full discussion of the case, preliminary to casting ballots. Arguments could be begun only on behalf of the accused. Nothing was permitted to be said against him until one of the judges had urged something in his behalf, and had said: "As I view the matter, and according to such and such evidence, it seems to me that the prisoner should be acquitted." The discussion became general for and against the accused. The entire record was then overhauled. Each item of evidence was carefully considered and subjected to the minutest criticism. Contradictions were noted and extenuating facts pleaded. If one of the disciples occupying one of the three rows of seats could offer any cogent or valid reason why the prisoner should not be convicted, he was invited to take his seat among the judges, and was regarded as a member of the court during the remainder of the day. If his argument resulted in the acquittal of the accused and saved a human life he was made a permanent member of the court. On the other hand, if one of the disciples had anything to say that would tend to injure the defendant he was not permitted to raise his voice.
When the entire case had been exhaustively discussed, the argument was closed and the balloting on the guilt or innocence of the accused commenced. The scribes were in readiness to record the votes and note the reasons assigned therefor. The youngest members of the tribunal were required to vote first, in order that they might not be unduly influenced by the example of their seniors in age and authority. The high priest, who was generally president of the Sanhedrin, addressed a gentle admonition to the youngest member, who was never less than forty years of age, to render a free and untrammeled verdict, and not to be awed or influenced by the patriarchs of the court. This admonition was repeated in the case of each youthful member of the tribunal. When the balloting commenced, each judge arose in his place and voted; at the same time making a short speech explanatory of his ballot. To secure a conviction it was not necessary that the members of the Sanhedrin should be unanimous. Indeed a peculiar rule of Hebrew law provided that if the verdict was instantaneous and unanimous it was invalid and could not stand. If the prisoner had not a single friend in court, the element of mercy was wanting in the verdict, said the ancient Hebrews, and the proceedings were regarded in the light of conspiracy and mob violence. A majority vote of at least two members was necessary to convict. A majority vote of one in his favor would acquit. Any majority amounting to two or more that did not reach unanimity was sufficient to condemn. If the accused was tried before a Minor Sanhedrin of three-and-twenty members or before the Great Sanhedrin with a bare quorum (twenty-three members, the same number as the full membership of a Minor Sanhedrin), a vote of thirteen members was necessary, in either case, to convict. If eleven judges were for conviction and twelve for acquittal, the prisoner was discharged at once; a majority of one vote being sufficient for that purpose. If twelve were in favor of conviction and eleven for acquittal, the condemnation of the accused was impossible; a majority of at least two being required to condemn. According to some writers, an acquittal was the result in such a case. According to others, in such a contingency the following novel expedient was employed to reach a verdict: From the first row of disciples two additional judges were selected and added to the original twenty-three members. Balloting then commenced anew. If the vote resulted in a majority of at least two against the prisoner, he stood convicted. If not, two more disciples were added from the first row in front and this process of increasing by twos the number of the Sanhedrin was continued until the requisite majority was secured. If it happened that the constant additions finally raised the number to seventy-one, the membership of the Great Sanhedrin, the process of increasing by twos was discontinued, and final balloting then began. If thirty-six voted for conviction and thirty-five for acquittal, the whole case was reargued for a reasonable time until one of the thirty-six yielded and declared in favor of acquittal. In case the thirty-six members persevered in their determination to convict, the prisoner was discharged.
At any stage of the trial, from the beginning with the three-and-twenty judges through all the successive additions of new members, a majority vote of one or more in favor of the accused would acquit; a majority of two or more, not amounting to unanimity, would convict.
In case of an acquittal the prisoner was immediately released and the trial was closed. In the event of conviction sentence could not be pronounced until the next afternoon and the session of the court was accordingly adjourned until the following day. Upon adjournment the members of the Sanhedrin with measured step and solemn mien left the chamber in which the trial had been conducted. Outside the judgment hall, in the open street, the judges formed themselves into groups or knots of five or six to discuss the trial and to lament the awful misfortune impending over Jerusalem; for such was the Hebrew conception of the execution of a son of Israel. The nucleus of each group was formed of elders of the Sanhedrin; the younger members came up from behind, leaned over between the shoulders of the patriarchs, and listened attentively and devoutly to what they were saying about the case. Gradually the groups broke up and the judges linked arm in arm, by twos, walked slowly homeward, still discussing the facts and arguments adduced at the trial. Finally they parted and retired to their respective homes. No heavy food, like meat, and no intoxicating beverage, were taken for the remainder of the day or during the night. Nothing was done that would incapacitate them for correct thinking. At sunset they began to make calls upon each other for the purpose of examining more carefully and debating more fully the issues of the case. When these visits were concluded, in the early evening, each judge retired to the privacy of his own home to sleep, meditate, and pray. At the dawn of day, they arose and prepared to resume again the solemn responsibilities of their office. The morning sacrifice was offered and the judges again assembled at sunrise in the hall of justice. They reseated themselves in the form of a semicircle; the prisoner was again led to the bar of the court; the witnesses were again produced; and the scribes, bringing with them the minutes of the former meeting, again took seats in their accustomed places.
The second part of the trial then began. It must be remembered that there were two trials of every Hebrew capital case. The second day was not a trial de novo; but was a proceeding in the nature of an appeal and was intended to accomplish a review of the proceedings of the previous day. Additional testimony, however, which had been discovered after the close of the first trial, might be introduced. But the record of facts seems not to have been considered so important as the question of the fixed opinions of the judges. Each member of the Sanhedrin was required, on the second day, to vote again and to declare anew his notions concerning the guilt or innocence of the accused. The statements of each judge were carefully noted by the scribes and compared with his statements at the previous day. If any judge voted for conviction at the second trial and founded his judgment on reasons and arguments radically different from those of the first day, his verdict was rejected. A member who had voted for acquittal on the first day was not permitted to change his vote for conviction on the second day. But one who had voted for condemnation at the first trial, might, by giving valid reasons, vote on the second day for acquittal.[174]
A most striking peculiarity of Hebrew law is to be noted in their method of counting votes and arriving at sums total in favor of or against the accused. Certain peculiar rules were to be strictly applied in determining the ultimate result. When upon examination of the record it was discovered that two or more judges had advanced identical arguments, though each supported his contention by different Biblical citations, their collective opinions were regarded as the common expression of a single mind and all their votes were counted only as one. Father and son, teacher and pupil, being members of the same court, counted also as one, provided their votes and opinions were arrayed on the same side, but not when they were placed in antagonism.[175]
When the balloting was complete the number for and against the prisoner was again announced. If a majority of at least two votes were registered against him he stood convicted a second time. But the humane and indulgent spirit of Hebrew law continued to operate and deferred immediate sentence. The judges continued to deliberate. No one thought of quitting the judgment hall on the second day of the trial. No one ate anything, no one drank anything on this second day; for the day that was to condemn an Israelite to death was to be a fast day for those who condemned him. It was to be a day of prayerful meditation. Ancient maxims of the Fathers, framed for the protection of the accused, were reconsidered. All the merciful tendencies of Talmudic interpretation were invoked and pleaded by the judges, the defenders of the accused. It was hoped that a few hours' time would discover facts favorable to the doomed man. New arguments, it was thought, might be offered and new witnesses might be forthcoming in his behalf. As they continued to deliberate, the fatal hour approached. There was to be no thirty or sixty days, as in America, between sentence and execution, during which time the condemned man could make peace with God. The moment that saw the judgment finally pronounced witnessed the beginning of its execution. Sunset, Nature's symbol of the extinguishment of the light of life, was the time fixed for both.
The death march and the final circumstances attending the execution of a Hebrew prisoner are without parallel in the jurisprudence of the world. As the culprit was led away to his doom, a man, carrying in his hand a flag, was stationed at the entrance of the Sanhedrin Hall. A mounted officer of the court followed the procession at a convenient distance and kept his eyes constantly turned in the direction of the flag bearer on the hill. A herald, carrying aloft a staff from which fluttered a crimson banner, made proclamation to the gazing multitude along the way that a human being was about to be executed. He cried aloud: "AB is to be put to death on the testimony of CD and XY, on such and such a charge. If any man knows anything favorable to the accused, in the name of God let him come forth and speak, in order that the prisoner may be led back to the Sanhedrin Hall to be again confronted and tried by his judges."
If any witness, friend or stranger, came forth to furnish new evidence in favor of the condemned man, the procession was halted and the accused was led back to the Sanhedrin Chamber. If any member of the court still sitting in the hall of judgment bethought himself of any new argument in behalf of the accused that had not been offered at the trial, he arose quickly in his place and stated it to his fellow-judges. The flag at the gate was then waved and the mounted messenger, chosen for such an emergency, saw it waving and galloped forward to stop the execution.
The culprit himself could delay or prevent the accomplishment of the death sentence if he could give to the Rabbins who escorted him any valid reason why he should not be put to death. He was led back as often as he gave any good excuse, not exceeding five times, the number prescribed by law. If no new witnesses appeared and if the prisoner made no further plea for life, the procession proceeded to within a short distance of the place of execution. The convict was then exhorted to declare himself guilty of the crime of which he was charged and to make full confession of all his sins. He was told that a full confession would entitle him to a happy existence beyond this life, since the flood of death would wash away all stains of sin and cleanse the soul of all the iniquities of existence in this world. If the condemned man still refused to confess that he was guilty of the crime with which he was charged, he was then urged to say: "May my death prove an atonement for all my transgressions."
He was then led to the ground of execution. The death draught, consisting of a mixture of frankincense and myrrh, poured into a cup of vinegar or light wine, was then given him. Stupefaction followed, rendering the culprit unconscious of his impending doom and insensible to the agonies of death. In Jerusalem, this benumbing and stupefying mixture was furnished by the Hebrew women, whose tender and merciful regard for the wretched and unfortunate of earth has in all ages been a striking characteristic of the sex. As soon as the draught had been administered the execution took place. The prisoner was either stoned, strangled, burned, or beheaded, according to the nature of his crime. In case of blasphemy or idolatry the dead body was afterwards hung upon a gallows until dusk. But ordinarily the corpse was immediately interred after execution. On the outskirts of every town there were two graveyards for criminals; in one of these those who had been burned or stoned were buried; in the other were interred those who had been hanged or beheaded. As soon as decomposition had taken place—that is, when the flesh had decayed and fallen from the bones—the relatives were allowed to remove the skeleton and to deposit it in the family burial ground.
Soon after the execution the friends and relatives of the dead man made friendly calls upon the judges who had tried and sentenced him. These visits were intended to show that the visitors harbored no feelings of bitterness or revenge against those who, in condemning one of their loved ones to death, had only performed the high and righteous duties of just and honorable judges of Israel.
PART III
THE BRIEF
