This peculiar proviso seems to have been intended to serve three distinct purposes: (1) To protect the would-be offender against his own ignorance and rashness and to prevent the commission of crime by a timely warning; (2) to aid in establishing guilty intention, that is, criminal intent, at the trial of the prisoner, after the commission of the offense; (3) to enable the judges to determine the exact penalty to assess. The first two purposes are self-evident. The third merits a brief consideration. To complete the warning, it was essential that the offender be told the exact penalty attached to the crime which he was about to commit; whether the punishment was capital or corporal, and the exact kind, if capital; that is, whether beheading, burning, stoning, or strangling. Now, it often happened that two crimes were committed by the same person in one day; the penalty for one of which being flagellation and the other death. And it sometimes happened that two different crimes were the result of one criminal transaction. In such a case, the nature of the Antecedent Warning would guide the judges in decreeing punishment. To illustrate: The Mosaic Code forbids the killing of either a cow or a ewe "and her young both in one day";[158] and a violation of this prohibition, according to Rabbinic law, entails the punishment of flagellation. Another Mosaic ordinance imposes the penalty of death on the Jewish idolater.[159] Now, it might have happened that the last two offenses mentioned were committed by the same person at the same time, as when an Israelite slaughtered a ewe and her young and sacrificed them as an offering to an idol. The question would at once arise: Which penalty should be assessed, death for idolatry, or flagellation for killing the ewe and her young both on the same day? Here, the nature of the Warning would determine. If the prisoner had been told that flagellation would be the punishment, then stripes were administered. If he had been warned that death was the penalty, then capital punishment was meted out to him. If the caution had included both death and flagellation, then death would have been administered, because of the enormity of the crime of idolatry and for the reason that all lesser punishments are merged in death.
Another illustration of the third purpose above mentioned, that is, to enable the judges to determine the exact punishment to administer, is this: The ancient Nazarites made solemn vows of abstemiousness.[160] And when any Israelite took the Nazarite vow and violated it, he subjected himself to the penalty of flagellation if he drank a certain measure (¼ log) of wine. If he drank several such measures in succession, the question would arise how he was to be punished. Again, the antecedent caution would decide. If the testimony showed that he had received due warning before each drink, then he was punished for each drink separately. If he had been admonished only once, he was punished only once for the whole debauch.[161]
The enforcement of this proviso established a rule of criminal procedure peculiar to the Hebrews, and recognized by no other nation. Such a requirement seems to be utterly subversive of the celebrated maxim that has found place in every other enlightened system of law: Ignorantia juris, quod quisque tenetur scire, neminem excusat. Among modern civilized nations, ignorance or mistake of fact in criminal law, as well as ignorance or mistake of the meaning and effect of civil or private law, has sometimes been permitted to operate as an excuse in favor of the victim of the ignorance or mistake; but ignorance of the criminal or public law has never been permitted to be pleaded as a defense to an indictment for crime. Such a plea would threaten the very existence of the state by rendering the proof of crime and the conviction of criminals impossible.
Other reasons besides those assigned above have been advanced to explain the invention of such a proviso by the Talmudists. None of them is entirely satisfactory. Rabbinowicz has urged with great force that the enactment was the offspring of a constantly increasing tendency on the part of the framers of the Talmud to mitigate the rigors of the Mosaic Code, and to abolish altogether the punishment of death by making the conviction of criminals practically impossible.[162] But this view has been ably and probably successfully combated by Benny and others. To say the least, it was a senseless provision when viewed from the standpoint of the state in maintaining order and preserving the commonwealth. The Rabbins framed several exceptions to its operation which were doubtless designed to stay the progress of certain forms of crime and to preserve the state. The false witness was excluded from the benefit of this proviso, as were also the instigator to idolatry and the burglar. The false witness was denied the benefit because of the impossibility of foreseeing that he would swear falsely and of forewarning him; the idolater was excepted because of the heinousness of the crime of idolatry under a theocratic commonwealth; and the burglar was denied the benefit of the caution for the very peculiar reason that the "breaking in," while committing the crime of burglary, was sufficient warning.[163]
Such a rule is utterly without foundation in logic or reason from the simple fact that crime in every age has been committed with every circumstance of caution and concealment that criminal ingenuity could devise; usually under the cover of night, often with a mask, frequently by the aid of accomplices to give notice of the appearance of the officers of the law, and nearly always with subsequent attempts to wipe out evidences of the commission of the offense. To require a preliminary caution, such as the Antecedent Warning of the Jews, was to handicap the state most seriously and to render almost impossible the apprehension and punishment of public malefactors.
CHAPTER V
HEBREW CRIMINAL LAW—MODE OF TRIAL AND EXECUTION IN CAPITAL CASES
