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Capital crimes, under Hebrew law, were classified by Maimonides according to their respective penalties. His arrangement will be followed in this chapter.[64]

Hebrew jurisprudence provided four methods of capital punishment: (1) Beheading; (2) Strangling; (3) Burning; (4) Stoning.

Crucifixion was unknown to Hebrew law. This cruel and loathsome form of punishment will be fully discussed in the second volume of this work.

Thirty-six capital crimes are mentioned by the Pentateuch and the Talmud.

Beheading was the punishment for only two crimes:

 (1) Murder.

 (2) Communal apostasy from Judaism to idolatry.

Strangling was prescribed for six offenses:

 (1) Adultery.

 (2) Kidnaping.

 (3) False prophecy.

 (4) Bruising a parent.

 (5) Prophesying in the name of heathen deities.

 (6) Maladministration (the "Rebellious Elder").

Burning was the death penalty for ten forms of incest—criminal commerce:

 (1) With one's own daughter.

 (2) With one's own son's daughter.

 (3) With one's own daughter's daughter.

 (4) With one's own stepdaughter.

 (5) With one's own stepson's daughter.

 (6) With one's own stepdaughter's daughter.

 (7) With one's own mother-in-law.

 (8) With one's own mother-in-law's mother.

 (9) With one's own father-in-law's mother.

 (10) With a priest's daughter.[65]

Stoning was the penalty for eighteen capital offenses:

 (1) Magic.

 (2) Idolatry.

 (3) Blasphemy.

 (4) Pythonism.

 (5) Pederasty.

 (6) Necromancy.

 (7) Cursing a parent.

 (8) Violating the Sabbath.

 (9) Bestiality, practiced by a man.

 (10) Bestiality, practiced by a woman.

 (11) Sacrificing one's own children to Moloch.

 (12) Instigating individuals to embrace idolatry.

 (13) Instigating communities to embrace idolatry.

 (14) Criminal conversation with one's own mother.

 (15) Criminal conversation with a betrothed virgin.

 (16) Criminal conversation with one's own stepmother.

 (17) Criminal conversation with one's own daughter-in-law.

 (18) Violation of filial duty (making the "Prodigal Son").[66]

The crime of false swearing requires special notice. This offense could not be classified under any of the above subdivisions because of its peculiar nature. The Mosaic Code ordains in Deut. xix. 16–21: "If a false witness rise up against any man to testify against him that which is wrong … and, behold, if the witness be a false witness, and hath testified falsely against his brother; then shall ye do unto him, as he had thought to have done unto his brother … and thine eye shall not pity, but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot." Talmudic construction of this law awarded the same kind of death to him who had sworn falsely against his brother that would have been meted out to the alleged criminal, if the testimony of the false swearer had been true.

Imprisonment, as a method of punishment, was unknown to the Mosaic Code. Leviticus xxiv. 12 and Numbers xv. 34 seem to indicate the contrary; but the imprisonment therein mentioned undoubtedly refers to the mere detention of the prisoner until sentence could be pronounced against him. Imprisonment as a form of punishment was a creation of the Talmudists who legalized its application among the Hebrews. According to Mendelsohn, five different classes of offenders were punished by imprisonment:

(1) Homicides; whose crime could not be legally punished with death, because some condition or other, necessary to produce a legal conviction, had not been complied with.

(2) Instigators to or procurers of murder; such, for instance, as had the deed committed by the hands of a hireling.

(3) Accessories to loss of life, as, for instance, when several persons had clubbed one to death, and the court could not determine the one who gave the death blow.

(4) Persons who having been twice duly condemned to and punished with flagellation for as many transgressions of one and the same negative precept, committed it a third time.

(5) Incorrigible offenders, who, on each of three occasions, had failed to acknowledge as many warnings antecedent to the commission of one and the same crime, the original penalty for which was excision.[67]

Flagellation is the only corporal punishment mentioned by the Pentateuch. The number of stripes administered were not to exceed forty and were to be imposed in the presence of the judges.[68] Wherever the Mosaic Code forbade an act, or, in the language of the sages, said "Thou shalt not," and prescribed no other punishment or alternative, a Court of Three might impose stripes as the penalty for wrongdoing. Mendelsohn gives the following classification:

Flagellation is the penalty of three classes of offenses:

(1) The violation of a negative precept, deadly in the sight of heaven.

(2) The violation of any negative precept, when accomplished by means of a positive act.

(3) The violation of any one of the prohibitive ordinances punishable, according to the Mosaic law with excision, to which, however, no capital punishment at the instance of a human tribunal is attached.[69]

The Mishna enumerates fifty offenses punishable by stripes, but this enumeration is evidently incomplete. Maimonides gives a full classification of all the offenses punishable by flagellation, the number of which he estimates to be two hundred and seven. The last three in his list are cases in which the king takes too many wives, accumulates too much silver or gold, or collects too many horses.[70]

Slavery was the penalty for theft under ancient Hebrew law. This is the only case where the Mosaic law imposed slavery upon the culprit as a punishment for his crime; and a loss of liberty followed only where the thief was unable to make the prescribed restitution. Exodus xxii. 1–3 says:

If a man shall steal an ox, or a sheep, and kill it, or sell it, he shall restore five oxen for an ox, and four sheep for a sheep … if he have nothing, then he shall be sold for his theft.

Penal servitude, or slavery, was imposed only on men, never on women. Slavery, as a penalty for theft, was limited to a period of six years in obedience to the Mosaic ordinance laid down in Exodus xxi. 2.

If thou buy a Hebrew servant, six years he shall serve: and in the seventh, he shall go free for nothing.

It should be remarked, in this connection, that slavery, as a punishment for crime, carried with it none of the odium and hardship usually borne by the slave. The humanity of Hebrew law provided that the culprit, thief though he was, should not be degraded or humiliated. He could be compelled to do work for his master, such as he had been accustomed to do while free, but was relieved by the law from all degrading employment, such as "attending the master to the bath, fastening or unfastening his sandals, washing his feet, or any other labor usually performed by the regular slave." Hebrew law required such kindly treatment of the convict thief by his master that this maxim was the result: "He who buys a Hebrew slave, buys himself a master."

Internment in a city of refuge was the punishment for accidental homicide. Mischance or misadventure, resulting in the slaying of a fellow-man, was not, properly speaking, a crime; nor was exile in a city of refuge considered by the Talmudists a form of punishment. But they are so classified by most writers on Hebrew criminal law. Among nearly all ancient nations there was a place of refuge for the unfortunate and downtrodden of the earth; debtors, slaves, criminals, and political offenders; some sacred spot—an altar, a grave, or a sanctuary dedicated and devoted to some divinity who threw about the hallowed place divine protection and inviolability. Such was at Athens the Temple of Theseus, the sanctuary of slaves. It will be remembered that the orator Demosthenes took refuge in the Temple of Poseidon as a sanctuary, when pursued by emissaries of Antipater and the Macedonians.[71] Among the ancient Hebrews, there were six cities of refuge; three on either side of the Jordan. They were so located as to be nearly opposite each other. Bezer in Reuben was opposite Hebron in Judah; Schechem in Ephraim was opposite to Ramoth in Gad; and Golan in Manasseh was opposite to Kedesh in Naphtali.[72] Highways in excellent condition led from one to the other. Signposts were placed at regular intervals to indicate the way to the nearest city of refuge. These cities were designated by the law as asylums or sanctuaries for the protection of innocent slayers of their fellow-men from the "avenger of blood." Among nearly all primitive peoples of crude political development, such as the early Germans, the ancient Greeks and Slavs, certain North American savage tribes and the modern Arabs, Corsicans and Sicilians, the right of private vengeance was and is taught and tolerated. Upon the "next of kin," the "avenger of blood," devolved the duty of hunting down and slaying the guilty man. Cities of refuge were provided by Mosaic law for such an emergency among the Hebrews. This provision of the Mosaic Code doubtless sprang from a personal experience of its founder. Bible students will remember that Moses slew an Egyptian and was compelled to flee in consequence.[73] Remembering his dire distress on this occasion, the great lawgiver was naturally disposed to provide sanctuaries for others similarly distressed. But the popular notion of the rights of sanctuary under the Mosaic law is far from right. That a common murderer could, by precipitate flight, reach one of the designated places and be safe from his pursuers and the vengeance of the law, is thought by many. The observation of Benny on this point is apt and lucid:

Internment in one of the cities of refuge was not the scampering process depicted in the popular engraving: a man in the last stage of exhaustion at the gate of an Eastern town; his pursuers close upon him, arrows fixed and bows drawn; his arms stretched imploringly towards a fair Jewish damsel, with a pitcher gracefully poised upon her head. This may be extremely picturesque, but it is miserably unlike the custom in vogue among the later Hebrews. Internment in a city of refuge was a sober and judicial proceeding. He who claimed the privilege was tried before the Sanhedrin like any ordinary criminal. He was required to undergo examination; to confront witnesses, to produce evidence, precisely as in the case of other offenders. He had to prove that the homicide was purely accidental; that he had borne no malice against his neighbor; that he had not lain in wait for him to slay him. Only when the judges were convinced that the crime was homicide by misadventure was the culprit adjudged to be interned in one of the sheltering cities. There was no scurrying in the matter; no abrupt flight; no hot pursuit, and no appeal for shelter. As soon as judgment was pronounced the criminal was conducted to one of the appointed places. He was accompanied the whole distance by two talmide-chachamin-disciples of the Rabbins. The avengers of the blood dared not interfere with the offender on the way. To slay him would have been murder, punishable with death.

Execution of Capital Sentences. (1) Beheading.—The Hebrews considered beheading the most awful and ignominious of all forms of punishment. It was the penalty for deliberate murder and for communal apostasy from Judaism to idolatry, the most heinous offenses against the Hebrew theocracy. Beheading was accomplished by fastening the culprit securely to a post and then severing his head from his body by a stroke with a sword.[74]

(2) Strangling.—The capital punishment of strangling was effected by burying the culprit to his waist in soft mud, and then tightening a cord wrapped in a soft cloth around his neck, until suffocation ensued.[75]

(3) Burning.—The execution of criminals by burning was not done by consuming the living person with fire, as was practiced in the case of heretics by prelates in the Middle Ages and in the case of white captives by savages in colonial days in America. Indeed, the term "burning" seems to be a misnomer in this connection, for the culprit was not really burned to death. He was simply suffocated by strangling. As in the case of strangling, the condemned man was placed in a pit dug in the ground. Soft dirt was then thrown in and battered down, until nothing but his head and chest protruded. A cord, wrapped in a soft cloth, was then passed once around his neck. Two strong men came forward, grasped each an end, and drew the cord so hard that suffocation immediately followed. As the lower jaw dropped from insensibility and relaxation, a lighted wick was quickly thrown into his mouth. This constituted the burning.[76] There is authority for the statement that instead of a lighted wick, molten lead was poured down the culprit's throat.[77]

(4) Stoning.—Death by stoning was accomplished in the following manner: The culprit was taken to some lofty hill or eminence, made to undress completely, if a man, and was then precipitated violently to the ground beneath. The fall usually broke the neck or dislocated the spinal cord. If death did not follow instantaneously the witnesses hurled upon his prostrate body heavy stones until he was dead. If the first stone, so heavy as to require two persons to carry it, did not produce death, then bystanders threw stones upon him until death ensued. Here, again, "stoning" to death is not strictly accurate. Death usually resulted from the fall of the man from the platform, scaffold, hill, or other elevation from which he was hurled. It was really a process of neck-breaking, instead of stoning, as burning was a process of suffocation, instead of consuming with fire.

These four methods of execution—beheading, strangling, burning, and stoning—were the only forms of capital punishment known to the ancient Hebrews. Crucifixion was never practiced by them; but a posthumous indignity, resembling crucifixion, was employed as an insult to the criminal, in the crimes of idolatry and blasphemy. In addition to being stoned to death, as a punishment for either of these crimes, the dead body of the culprit was then hanged in public view as a means of rendering the offense more hideous and the death more ignominious. This hanging to a tree was in obedience to a Mosaic ordinance contained in Deut. xxi. 22. The corpse was not permitted, however, to remain hanging during the night.

The burial of the dead body of the criminal immediately followed execution, but interment could not take place in the family burial ground. Near each town in ancient Palestine were two cemeteries; in one of them were buried those criminals who had been executed by beheading or strangling; in the other were interred those who had been put to death by stoning or burning. The bodies were required to remain, thus buried, until the flesh had completely decayed and fallen from the bone. The relatives were then permitted to dig up the skeletons and place them in the family sepulchers.