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COMPETENCY.—The qualifications of a competent witness, under Hebrew law, were almost identical with those of a qualified judge, mentioned in a previous chapter. Self-evidently, all persons who were not incompetent, were competent.

Incompetency.—The following persons were incompetent to be witnesses: Gentiles, women,[123] minors, slaves,[124] idiots and lunatics, deaf mutes, blind men, gamblers, usurers, illiterate or immodest persons, persons who had been convicted of irreligion or immorality, relatives by affinity or consanguinity, and all persons directly interested in the case.

The witness must have been a Hebrew, though the Talmud mentions cases in which certain facts were allowed to stand proved upon statements "made innocently" by a Gentile; that is, not as a witness in court.

Women were not permitted to be witnesses ordinarily, because of the "levity and boldness of the sex."[125] In capital cases, they were not allowed to testify against the accused, because the law required the witnesses to become the executioners of the condemned man, and it was not deemed proper to impose this solemn and awful duty upon the weaker sex.

Puberty or adolescence marked the age which qualified a person to be a witness in criminal cases; that is, the thirteenth year must have been passed.

Immoral and irreligious persons were incompetent to testify. Such men were termed "wicked" in reference to the law as laid down in Exodus xxiii. 1: "Thou shalt not raise a false report: put not thine hand with the wicked to be an unrighteous witness." Under the stigma of the immoral and irreligious came dicers, usurers, pigeon fliers, and those who traded in the fruits of the Sabbatical year. Maimonides also mentions as incompetent "men who showed lack of self-respect by eating on the street, walking about naked at their work, or living openly on the charity of Gentiles."[126] Publicans—tax-gatherers—were usually classed with heathens and sinners as being among the immoral and irreligious. This class of persons were suspected by the Jews, not only because they were regarded as the official representatives of the Roman oppressors of Judea, but also because extortion and cruelty were frequently practiced by them. Theocritus being asked which was the most cruel of all beasts, replied: "Among the beasts of the wilderness, the bear and the lion are the most cruel, but among the beasts of the city, the Publican and the Parasite."[127]

The doctrine of interest as a disqualification to testify was carried to the limit of declaring a person incompetent to be a witness when he was the citizen of a town where claim of title to the public bath house or the square was made, until he had first divested himself of all share in the title to the litigated property.[128]

Number Required to Convict.—Under Hebrew law, both Mosaic and Talmudic, at least two witnesses were required to convict an accused person. The prosecuting witness being included, three were necessary.

Concerning capital punishment, the Mosaic ordinance, referring to this rule, runs thus:

At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.[129]

Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses; but one witness shall not testify against any person to cause him to die.[130]

From the Talmud we learn that this Mosaic provision was maintained with scrupulous fidelity in the administration of justice throughout all the years of Jewish nationality. It was a requirement of prudence and safety which commends itself to every logician and legist. It is not necessary to be a criminal lawyer of large experience to know that the blackest falsehood can almost always secure at least one champion. Pliny, the historian, knew this when he wrote: "Nullum tam impudens mendacium est quod teste careat."[131]

The requirement of two witnesses was not, however, peculiar to the jurisprudence of the Hebrews. Nearly every ancient code contained a similar enactment. It was especially prominent in Roman law.[132] But it can scarcely be found to-day in any modern legislation. In prosecutions for the crimes of treason and perjury under the Common Law of England, two witnesses were required; in almost all other cases, one positive witness was sufficient.[133]

The American Constitution requires two witnesses to the same overt act, to convict of treason.[134] And the penal laws of the majority of the American States have provisions requiring at least two witnesses, or one witness corroborated by circumstantial evidence, to establish guilt in the prosecution of certain crimes; notably, the sexual crimes of rape and seduction, the crime of perjury, as well as all crimes where it is sought to convict upon the testimony of an accomplice.

More than one hundred years ago, Montesquieu boasted of such a requirement in French law and declared that those laws which condemn a man to death on the testimony of a single witness are fatal to liberty.[135] The reason of the rule proclaimed by the great French writer is the same as that put forth by the ancient Rabbins. It was assumed that the defendant in a criminal case would plead not guilty and deny the facts of the crime. His plea and denial would simply counterbalance and destroy the testimony of a single witness swearing for the commonwealth. The testimony of a third witness was, therefore, indispensable to a decision. It may be objected that this rule was absurd, since a conviction was impossible unless the State could produce more witnesses than the accused. But we shall learn later that the doctrine of sifting testimony and weighing the credibility of witnesses did not obtain so strictly among the ancient Hebrew judges as it does in cases of modern trial by jury under English and American law.

Agreement of Witnesses.—The witnesses were required to agree in all essential details; else, their testimony was invalid and had to be rejected.

The Talmudic provision is: "If one witness contradicts another, the testimony is not accepted."[136]

The illustration of the rule given by Maimonides, in his commentary on this provision, is: "For instance, if one witness were to testify to having seen an Israelite in the act of worshiping the sun, and another to having seen the same man worshiping the moon, yet, although each of the two facts proves clearly that the man had committed the horrible crime of idolatry, the discrepancy in the statements of the witnesses invalidates their testimony and the accused is free."[137]

This rule of strict agreement, it is supposed, extended, at first, only to criminal cases, but it was undoubtedly afterwards applied to civil causes as well. An eminent contributor to the "Jewish Encyclopedia" says:

In civil cases, however, it is not necessary that the two witnesses should agree very closely as to the time and place. Thus, if of two witnesses to a loan one should say, "A lent B a jar of oil," the other, "He lent him a jar of wine"; or, if one should say, "I was present when the money was paid at Jerusalem," the other, "I saw it paid at Hebron"; or, if one should say, "I saw it paid in the month of Nisan," the other, "I saw it paid in Iyyar," their testimony would be void. But if one says he saw it paid in the upper and the other in the lower story; or if he says on the first of the month and the other on the second of the month, such evidence is within the limit of fair mistake and the testimony stands. Even less does a disagreement as to circumstances other than time and place affect the testimony; for instance, if one say the money is black from usage, the other that it was new, this would be regarded as an immaterial circumstance, and the testimony would stand. Where the two witnesses vary only in the matter of quantity, the lesser quantity is sufficiently proved.[138]

One of the strangest provisions of Hebrew law was the requirement that the testimony of each witness to the transaction should cover the entire case. This was a Talmudic rule resulting from Rabbinic construction of the Mosaic ordinance, requiring at least two witnesses to establish a crime. The doctors of the law construed the rule to mean that the testimony of each witness was to be complete within itself and to extend to the whole case. Hebrew law did not permit the use of circumstantial evidence in criminal prosecutions. Only eyewitnesses of the crime were competent. Under English and American law a crime may be proven by any number of witnesses, each of whom testifies to a separate fact which constitutes a link in the chain of circumstantial evidence. But this method of proof was forbidden by both the Pentateuch and the Talmud. Under Hebrew law the capital crime of kidnaping was made up of the two elements of Abduction and Selling. The testimony of two witnesses—one to the fact of Abduction, the other to the fact of Selling—was insufficient to convict. Each had to testify to the facts of both Abduction and Selling. This Talmudic rule of criminal procedure was undoubtedly based upon a supreme regard for the sanctity of human life and upon the fact that the Hebrews rejected circumstantial evidence altogether in proving crime. The extreme of the rule is declared by Mendelsohn when he says: "And even where there appeared a legal number of duly qualified witnesses, the testimony was insufficient to convict, unless they agreed not only with regard to the prisoner's offense, but also with regard to the mode of committing it. Rabbinic law does not subject a person to capital, nor even to corporal punishment, unless all witnesses charge him with one and the same criminal act, their statements fully agreeing in the main circumstances, and declaring that they saw one another, while seeing him engaged in the crime."[139]

No Oath Required.—An oath, in the modern sense, was never administered to a Hebrew witness.

Testimony was given under the sanction of the Ninth Commandment: "Thou shalt not bear false witness against thy neighbor." This solemn prohibition of bearing false witness was regarded by both Moses and the Talmudists as a sufficient safeguard against perjury. It was a settled maxim of Talmudic law that: "Whosoever will not tell the truth without an oath, would not scruple to assert falsehood with an oath." The doctrine was carried still further by some of the Jewish philosophers who declared that swearing was injurious in itself; and that he who consents to swear should ipso facto be suspected of lacking credibility.[140]

In the place of an oath, the following solemn warning or adjuration was administered to each witness in the presence of the entire court:

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 thee from testifying to what thou actually knowest. 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."[141]

It will be observed that the two elements of this preliminary caution were, first, a solemn warning against injustice to the accused through false swearing and a reminder of the inevitable retribution of Heaven upon the perjured swearer and his remote descendants; second, a pointed admonition against timidity or fear in testifying.

Bound by this tremendous sanction, the Hebrew witness was prepared to testify. The method was unique, but seems to have been thoroughly effective. Students of law will not be struck by its peculiarity. They are well aware that any plan or mode is legal and effective that binds the conscience of the witness. Even under modern codes that impose an oath, no fixed form is imperatively demanded. In King v. Morgan, I Leach C. L. 54, a Mahometan was sworn upon the Koran; in Omychund v. Baker, I Atk. 21, a Gentoo was sworn by touching the foot of a Brahmin; in Reg. v. Entrehman, I Car. & M. 248, a Chinese witness took an oath by kneeling down and breaking a saucer, the oath being administered through an interpreter in these words: "You shall tell the truth, the whole truth; the saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer."

Examination of Witnesses.—As an act of caution against the admission of irrelevant testimony, and as a means of placing before the entire court, in the first instance, only such evidence as was deemed strictly legal, a preliminary examination of witnesses was conducted in private by a special committee of the Sanhedrin appointed for that purpose. All irrelevant testimony developed at this private examination was immediately declared inadmissible and was cast aside. The necessary result of this most sensible proceeding was the discovery, in advance, of discrepancies in the statements of witnesses and the eradication of all illegal testimony. The full court sitting in regular session were not, therefore, exposed to the danger of being prejudiced by the recital of facts that had no legal connection with the case. Modern jurists might easily learn something from the ancient Hebrews in this regard. Every sensible lawyer is perfectly well aware of the absurdity and injustice of the modern method of criminal procedure in allowing skilled and designing attorneys to propose certain kinds of irrelevant testimony in the presence of the jury, knowing very well that it will be overruled by the court. These attorneys frequently deliberately draw out such testimony from the witness with the expectation and understanding that it will be ordered stricken out. The rule of practice that allows incompetent testimony to be temporarily introduced upon a promise that a foundation will be laid or relevancy shown, is abortive instead of productive of justice. The mere clerical act of striking out incompetent testimony does not, as a matter of fact, remove the impression of prejudice from the brain of the judge or juror. The ancient Sanhedrists were men of brilliant education and superior natural endowments. They were trained in powers of logical analysis, and yet they were unwilling to trust themselves with the possession of prejudicial facts arising from incompetent testimony. It is respectfully submitted that the modern average juror, whose mind is usually undisciplined in logic and legal matters, is not able to sift and disentangle the relevant from the irrelevant in the record of a civil or criminal trial of two or more weeks' duration. Theoretically, he is; but practically, he is not. Every impression, good or bad, legal or illegal, received at the trial, affects his judgment and enters into the general summary of the case in reaching a verdict.

Separation of Witnesses.—The witnesses were required to give their testimony separately and always in the presence of the accused.

Daniel said to the people concerning the two old men who testified against Susanna: "Separate them, and I will examine them."[142]

By this was meant that witnesses could not be examined until they had been separated in conformity with law. Under modern practice in most jurisdictions, witnesses may be separated and examined one at a time out of the presence of each other. The rule of separation is, however, generally optional with the litigant and discretionary with the court; the ruling of the court being usually reversed only in case of abuse of discretion. But among the Hebrews the requirement was mandatory and imperative. It had to be observed in every case.

Mode of Examination of Witnesses.—The mode employed by the Hebrew judges in examining witnesses is without a precedent or parallel in the jurisprudence of the world. Two distinct sets of questions constituted the examination. The first set consisted of a series of interrogations relating to the time and place of the alleged crime. These questions were prescribed by law and could not be varied in the slightest. The technical name applied to the first set of questions was Hakiroth. The second set was termed Bedikoth[143] and included all interrogations touching the investigation of relevant circumstances and corroborative facts surrounding the case. The following seven questions, constituting the Hakiroth, the first set of questions, were propounded to each witness: "Was it during a year of jubilee? Was it in an ordinary year? In what month? On what day of the month? At what hour? In what place? Do you identify this person?"[144]

These seven questions were framed and applied in conformity with a fundamental principle of the Hebrew law of evidence that the testimony of any witness, if false, should admit of being impeached and overthrown by proof of an alibi against the witness. It seems, indeed, that proof of an alibi against the witness was the only method of impeachment known to Hebrew law. It may be readily seen that the only statements capable of being thus contradicted were confined to those relating to the details of time and place. To illustrate: Suppose that two witnesses had testified that the alleged crime was committed in a certain town at a certain hour; suppose that it subsequently appeared in evidence that, at the stated time, one or both these witnesses were in a neighboring town. In such a case, the witness or witnesses stood impeached, their testimony was overthrown and they, themselves, became subject to the pains and penalties of perjury.

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 two or more witnesses required by the law in answer to any one of these questions, likewise entitled the prisoner to immediate discharge. These seven questions seem to have been framed not so much to develop truthful testimony and to promote the ends of justice from the standpoint of the State as to enable the defendant to attack and destroy the testimony of hostile witnesses. The rule and the reason thereof are thus clearly and succinctly stated by Mendelsohn:

The several particulars referring to time and place must be furnished with the greatest possible precision and certainty, and that by the whole party of witnesses. The slightest disagreement on the part of the witnesses in regard to any one of these particulars invalidates the entire testimony. Even where a number of witnesses greater than that required by law, as three, appear, and two agree on every point, but the third differs from them as to more than one day, or more than one hour in the day, the whole testimony is invalidated. For time and place are the only points which affect the person of the witness himself; he not being able to be at more than one spot at any one time; time and place are, accordingly, the only grounds on which the witness may be confuted and duly punished.

The second set of questions, termed the Bedikoth, embraced all matters not brought out by the Hakiroth, such as would form the basis of legitimate modern direct or cross examination. The following kinds of evidence, however, were not admissible under either set of questions: Evidence of character, good or bad; previous convictions of the accused; and evidence as to the prisoner's antecedents. Such matters were not relevant, under Hebrew law, and could not be urged against the prisoner.[145]

False Witnesses.—Hebrew law provided that false witnesses should suffer the penalty provided for the commission of the crime which they sought by their testimony to fix upon the accused.

The Scriptural authority for this rule is the following:

"And the judges shall make diligent inquisition; 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 do 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."[146]

"And they arose against the two elders, for Daniel had convicted them of false witness, by their own mouth; and according to the law of Moses, they did unto them in such a sort as they maliciously intended to do their neighbor; and they put them to death."[147]

The Accused as Witness.—The accused was never compelled, under Hebrew law, to testify against himself; but was permitted and encouraged to offer testimony in his own behalf. His confession of guilt was accepted in evidence and considered in connection with other facts of the case, but was never permitted, standing alone, to form the basis of a conviction.

The following is the commentary of Maimonides on this rule of law:

We have it as a fundamental principle of our jurisprudence that no one can bring an accusation against himself. Should a man make a confession of guilt before a legally constituted tribunal, such confession is not to be used against him, unless properly attested by two other witnesses. It is, however, well to remark that the death sentence issued against Achan was an exceptional case, brought about by the nature of the circumstances attending it, for our law never condemns on the single confession of an accused party.[148]

It is needless to suggest that the accused was never put under oath. His position in this regard was exactly the same as that of any other Hebrew witness. A special reason assigned for not swearing the accused is that offered in the celebrated maxim: "In most men religion is silent when interest speaks." Again, the inducement to perjury was so great that it was thought imprudent to allow the accused to confess under the solemnity of an oath.

The principle of law which rejects a bare confession of guilt as a basis of criminal conviction is one of the most merciful and benign known to jurisprudence. It is intended to protect the commonwealth against perjury and deception on the part of the accused. It is also intended to protect the prisoner against ignorance and rashness. It is a well-known fact that the masses of mankind are ignorant of law, both civil and criminal. Not one in a thousand in the most enlightened commonwealths can define successfully the elements of the crimes of the state of which he is a citizen. By refusing to allow an uncorroborated confession to be made the basis of a conviction, the State simply throws the mantle of charity and protection around the ignorance of the prisoner who confesses. It is also well known that men will frequently confess guilt when they are not guilty; sometimes, when they are even ignorant of the facts constituting the offense. This is one of the strangest things known to psychology and mental philosophy.[149] It is derived from the well-known and universally recognized weakness of the human will when confronted with a charge that threatens to blight and destroy life and character at a single blow. A celebrated modern writer, while discussing this rule of Hebrew law, wrote the following observations upon the origin and motive of confession of guilt under criminal charges:

The confession of the accused made no exception to the rule, showing how a confession could be made the result of weakness, or folly, or of interest—yes, even of interest. Some homicide on one occasion confessed himself to be guilty of robbery or arson in order to obtain proof of his innocence of some greater crime which he had committed at the same time; a husband persisted in declaring himself guilty of outrage upon a woman, really committed by some unknown person, in order that, by being sentenced on this account, he might prove his marital efficiency, which had been disputed by his wife, who was contemplating steps to annul her marriage. Some weak-minded people, unable to support the torture of a harassing examination, and eager to regain their liberty, make a full confession, accusing themselves in order not to be indicted, like those persons who, crossing a river on a plank bridge, throw themselves, through nervousness, into the rushing water, in order not to fall in. Fools, from want of responsibility, or through a boastful nature, accept, affirm, or confess everything of which they know nothing.[150]

The reasons above stated lie at the foundation of all modern provisions framed for the protection of the accused against precipitate self-condemnation. But, strange to say, these reasons were not urged by the framers or interpreters of Hebrew law. The explanation offered by the Talmud was simply this: "He is his own kin"; and, as we have seen, relatives were never permitted to be witnesses. A modern Jewish writer has assigned the following reason for the rule forbidding a confession to form the basis of a conviction: that, if the prisoner were innocent, he should not be permitted to incriminate himself by a false confession; if he were guilty, he was a wicked person, and, therefore, incompetent to testify under Hebrew law.[151] This rule was not enforced, however, against the defendant when testifying in his own behalf; an additional proof of the merciful regard of Hebrew law for the unfortunate position of a human being charged with crime. His testimony, though self-serving, was given due weight when urged in his own defense. Little attention was paid to it when he testified against himself.

Relevancy of Hebrew Evidence.—Hearsay evidence was irrelevant under Hebrew law. "Hearsay evidence was barred equally in civil as in criminal cases, no matter how strongly the witness might believe in what he heard and however worthy and numerous were his informants."[152]

Circumstantial evidence was irrelevant under Hebrew law. "The sages had very little more confidence in circumstantial evidence given for the purpose of 'taking money out of' the defendant's pocket, than in that given for the purpose of inflicting the penalty of death or stripes. Ket. ii. 10 has been cited, according to which a witness may testify that, when a boy, he saw a woman walk about in maidenly attire; the object being to prove that she married as a maiden, not as a widow, and is therefore entitled to a greater sum for her jointure. In discussing this clause, the Talmud remarks that this is only arguing from the majority of cases; for though in most cases those wearing maidens' attire are not widows, occasionally they are; and money ought not to be taken out of a man's pocket on reasoning from the greater number of cases. In fact, circumstantial evidence was generally rejected."[153]

There were occasional exceptions to the rule in the administration of Hebrew civil law, but none in criminal law. In criminal cases no Hebrew prisoner could be convicted upon circumstantial evidence. Every link in the chain of testimony had to be forged by the direct evidence of at least two competent witnesses; else the accused was acquitted and discharged.

Written, or documentary evidence, was not relevant, under Hebrew law, in criminal prosecution. The reason of this rule was derived from a literal interpretation of the Mosaic ordinance: "Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses."[154] The expression, "mouth of witnesses," was construed by the interpreters of the law to require oral testimony and to exclude writing in all criminal prosecutions.

Kinds of Oral Testimony.—Hebrew oral testimony is divided by the Mishna into three leading classes:[155]

 (1) Vain testimony.

 (2) Standing testimony.

 (3) Adequate testimony.

"Vain testimony" seems to have been wholly immaterial and irrelevant. It was not even conditionally admitted, but was instantly and permanently rejected. The New Testament seems to indicate that such testimony was rendered against Jesus by the "many false witnesses" who first came, and that testimony was rejected.

"Standing testimony" seems to have been conditionally admitted and to have been allowed to remain in evidence until it was properly confirmed by and joined to other evidence which the law required. It was not valid, however, until so connected and confirmed. We must remember that at least two witnesses, agreeing in all essential details, were needed, under Hebrew law, to convict a prisoner. It is evident then that the testimony of the first witness against the accused was necessarily regarded as "standing testimony," until the second or confirming witness, which the law required, had testified. This testimony is also referred to in the New Testament when it is said that: "At the last, came two false witnesses, And said, This fellow said, I am able to destroy the temple of God and to build it in three days."[156] The testimony of the first of these witnesses was doubtless allowed to stand until it was shown that the second witness did not render testimony in agreement with it. Contradictory testimony was thrown out under Hebrew criminal procedure; and this was done regardless of the number of witnesses who testified against the accused. It seems that a rigid application of the principle of exclusion based upon contradictory statements would have shut out the testimony of any number of agreeing witnesses, if said testimony had been contradicted in a radical and material way by even a single witness. The sifting of evidence and the weighing of the credibility of witnesses, which is the peculiar prerogative of the modern jury, were no part of the duties of the ancient Sanhedrists. The testimony of all the witnesses against the accused had to agree in all material respects, else it was wholly rejected. Now it necessarily follows that all testimony against a prisoner was of the "standing" or provisional kind until the last witness had testified, and it was found that the evidence in its entirety was in legal agreement. Mark, using the almost exact technical expression of the law, tells us, concerning the false testimony against Jesus, that "their witness agreed not together."[157] This disagreement caused the "standing testimony" of the first witness to fall and the charge of threatening or attempting to destroy the Temple was abandoned, as we shall see in a later part of this work.

"Adequate testimony," under Hebrew criminal procedure, was evidence that was competent, material, and in legal agreement. When two or more witnesses, being the entire number, against the accused agreed in all essential details, their testimony was considered adequate, and if the judges believed it to be true they based a conviction upon it.

Antecedent Warning.—It is deemed appropriate in this chapter to call attention to and briefly discuss a very striking peculiarity of the law of evidence under Hebrew criminal procedure. In the chapter on Mosaic and Talmudic law, reference was made to the celebrated proviso, called "Antecedent Warning." This proviso was unknown to the Mosaic Code, being a creation of Talmudic law, and is without a parallel in the jurisprudence of the world. Briefly stated, Antecedent Warning, under Hebrew law, meant simply this: That no person charged with crime involving life and death, or even corporal punishment, could be convicted, unless it was shown by competent testimony that immediately before the commission of the crime the offender was warned that what he was about to do was a crime, and that a certain penalty was attached thereto. The warning was not effective if any time elapsed between the admonition and the commission of the offense. Furthermore, the warning was of no force unless it was shown that the alleged criminal had duly acknowledged it and had expressed a willingness to suffer corporal punishment or to die for the act. It must have been shown that, having received the warning, the would-be offender turned to his monitor and said, "I am very well aware of the nature of the act I am about to commit, of the rules of law applicable thereto, and of the inevitable consequences of my misdeed"—else the court could not consider the condition complied with.

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.