I feel honoured in having maintained the same opinion in my Observations on Criminal Legislation; but I solicit those, who wish to see this question discussed in its whole extent, to read the profound reflections which the Duke de Broglie has just published on the subject, in the last number of the Revue Française (for October, 1828.)
The whole criminal procedure in the Pentateuch rests upon three principles, which may be thus expressed; publicity of the trial, entire liberty of defence allowed to the accused; and a guaranty against the dangers of testimony. According to the Hebrew text one witness is no witness; there must be at least two or three who know the fact. The witness, who testifies against a man, must swear that he speaks the truth; the judges then proceed to take exact information of the matter; and, if it is found that the witness has sworn falsely, they compel him to undergo the punishment to which he would have exposed his neighbour. The discussion between the accuser and the accused is conducted before the whole assembly of the people. When a man is condemned to death, those witnesses whose evidence decided the sentence inflict the first blows, in order to add the last degree of certainty to their evidence. Hence the expression—Let him among you, who is without sin, cast the first stone.
If we pursue their application of these fundamental rules in practice, we shall find that a trial proceeded in the following manner.
On the day of the trial, the executive officers of justice caused the accused person to make his appearance. At the feet of the Elders were placed men who, under the name of auditors, or candidates, followed regularly the sittings of the Council. The papers in the case were read; and the witnesses were called in succession. The president addressed this exhortation to each of them: “It is not conjectures, or whatever public rumour has brought to thee, that we ask of thee; consider that a great responsibility rests upon thee: that we are not occupied by an affair, like a case of pecuniary interest, in which the injury may be repaired. If thou causest the condemnation of a person unjustly [pg 538] accused, his blood, and the blood of all the posterity of him, of whom thou wilt have deprived the earth, will fall upon thee; God will demand of thee an account, as he demanded of Cain an account of the blood of Abel. Speak.”
A woman could not be a witness, because she would not have the courage to give the first blow to the condemned person; nor could a child, that is irresponsible, nor a slave, nor a man of bad character, nor one whose infirmities prevent the full enjoyment of his physical and moral faculties. The simple confession of an individual against himself, or the declaration of a prophet, however renowned, would not decide a condemnation. The Doctors say—“We hold it as fundamental, that no one shall prejudice himself. If a man accuses himself before a tribunal, we must not believe him, unless the fact is attested by two other witnesses; and it is proper to remark, that the punishment of death inflicted upon Achan, in the time of Joshua[399] was an exception, occasioned by the nature of the circumstances; for our law does not condemn upon the simple confession of the accused, nor upon the declaration of one prophet alone.”
The witnesses were to attest to the identity of the party, and to depose to the month, day, hour, and circumstances of the crime. After an examination of the proofs, those judges who believed the party innocent stated their reasons; those who believed him guilty spoke afterwards, and with the greatest moderation. If one of the auditors, or candidates, was entrusted by the accused with his defence, or if he wished in his own name to present any elucidations in favour of innocence, he was admitted to the seat, from which he addressed the judges and the people. But this liberty was not granted to him, if his opinion was in favour of condemning. Lastly; when the accused person himself wished to speak, they gave the most profound attention. When the discussion was finished, one of the judges recapitulated the case; they removed all the spectators; two scribes took down the votes of the judges; one of them noted those which were in favour of the accused, and the other, those which condemned him. Eleven votes, out of twenty-three, were sufficient to acquit; but it required thirteen to convict. If any [pg 539] of the judges stated that they were not sufficiently informed, there were added two more Elders, and then two others in succession, till they formed a council of sixty-two, which was the number of the Grand Council. If a majority of votes acquitted, the accused was discharged instantly; if he was to be punished, the judges postponed pronouncing sentence till the third day; during the intermediate day they could not be occupied with anything but the cause, and they abstained from eating freely, and from wine, liquors, and everything which might render their minds less capable of reflection.
On the morning of the third day they returned to the judgment seat. Each judge, who had not changed his opinion, said, I continue of the same opinion and condemn; any one, who at first condemned, might at this sitting acquit; but he who had once acquitted was not allowed to condemn. If a majority condemned, two magistrates immediately accompanied the condemned person to the place of punishment. The Elders did not descend from their seats; they placed at the entrance of the judgment hall an officer of justice with a small flag in his hand; a second officer, on horseback, followed the prisoner, and constantly kept looking back to the place of departure. During this interval, if any person came to announce to the Elders any new evidence favourable to the prisoner, the first officer waved his flag, and the second one, as soon as he perceived it, brought back the prisoner. If the prisoner declared to the magistrates, that he recollected some reasons which had escaped him, they brought him before the judges no less than five times. If no incident occurred, the procession advanced slowly, preceded by a herald who, in a loud voice, addressed the people thus: “This man (stating his name and surname) is led to punishment for such a crime; the witnesses who have sworn against him are such and such persons; if any one has evidence to give in his favour, let him come forth quickly.”
It was in consequence of this rule that the youthful Daniel caused the procession to go back, which was leading Susanna to punishment, and he himself ascended the seat of justice to put some new questions to the witnesses.
At some distance from the place of punishment, they urged [pg 540] the prisoner to confess his crime, and they made him drink a stupefying beverage, in order to render the approach of death less terrible.[400]
By this mere analysis of a part of Mr. Salvador's work we may judge of the extreme interest of the whole. His principal object has been, to make apparent the mutual aids which history, philosophy, and legislation afford in explaining the institutions of the Jewish people. His book is a scientific work, and at the same time a work of taste. His notes indicate vast reading; and in the choice of his citations he gives proofs of his critical skill and discrimination. Mr. Salvador belongs, by his age, to that new generation, which is distinguished as much by its application to solid studies, as by elevation and generosity of sentiment.