Death Penalty and Talmud Law
2. Accusation and Trial

In 1999, the US Supreme Court accepted a death penalty brief based wholly on Talmud law. The advocates say the Talmud has a better way. Does it?

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Rabbi Noson Gurary is the Executive Director of the Hasidic Chabad of Buffalo, New York. According to his bio, "he is teaching courses in the University at Buffalo and in the Law School, writes and publishes books in the area of Jewish misticism [sic] and Chassidic philosophy, conducts Lunch & Learn programs, personally runs Chabad House on Shabbos and Holidays, constantly councels [sic] on all levels." (3) As founder of the National Institute for Judaic Law, Rabbi Gurary is quoted by the Jerusalem Post: "By demonstrating the philosophy of Jewish law and its moral values, we can bring a little beacon of light to this world." (1)

Israeli Supreme Court and the pedestrian bridge over Yitzhak Rabin Blvd. in Jerusalem.
 
Israel Supreme Court Justice (retired) Rabbi Menachem Elon wrote the (Israel court) opinion that formed the core of the argument used in the Brief submitted to the US Supreme Court by Nathan Lewin. Rabbi Justice Elon also reviewed and approved Lewin's brief after it was written.
 
"The conclusions regarding Jewish Law that we summarize in this brief were expressed in an opinion issued by the then Deputy President of the Supreme Court of Israel, the Honorable Menachem Elon, in State of Israel v. Tamir, 37(iii) P.D. 201 (1983). Justice Elon, who is now retired from the Israeli Supreme Court, has reviewed the text of this amicus brief and authorized us to state that he concurs with its conclusions." (4)
 
In that brief, Rabbi Justice Elon wrote:
 
"Jewish Law was particularly insistent on the preservation of even a criminal's rights and dignity during the course of punishment … According to Jewish law, a death sentence must be carried out with the minimum of suffering and without offense to human dignity. This is based on the Biblical verse, 'Love your fellow as yourself,' and the rule is, 'Choose for him a humane death.' From this we declare that even a condemned felon is your 'fellow.'" (4)
 
Given that Justice Elon is a rabbi, familiar with the Talmud, this statement is puzzling. What of the Talmud practice of burying the prisoner in dung before strangling him or pouring molten lead into his mouth? Or what of the practice of stripping a man naked before stoning him, and then hanging the corpse naked for public display? It is hard to see how these practices are consistent with preserving "a criminal's rights and dignity during the course of punishment."
 
According to a speech Rabbi Justice Elon delivered to the students of McGill University in Montreal, October 3, 2002:
 
"I have been honoured to establish programs and chairs in Jewish law at many other prestigious universities. Other programs reside in a single faculty. The cooperation of the Faculties of Arts and Law is an important and welcome innovation. Within Jewish heritage, there are many different views and opinions which have contributed to the depth and richness of Jewish law through all the generations. Such an approach is essential to Jewish thought." — Rabbi Justice Elon (6)

Pile of Dung
 
The Talmud requires that those being strangled and those having molten lead poured into their mouths must be buried up to their armpits in a pit of dung before the procedure commences. However, the Talmud is silent about the type of dung to be used. Given that there are many Talmud references to oxen, we may assume the dung used was ox dung. We borrowed this photo of a pile of manure from a now-defunct page at an agricultural college.

Stripped to the Waist. Under Talmud law, a woman whose husband suspects her of infidelity but has no proof is subjected to a trial by ordeal. Before the trial she is stripped to the waist and put on public display.
 
MISHNAH. … If she says, 'I am pure', they bring her up to the East Gate … A priest seizes her garments … until he uncovers her bosom … If she wore golden ornaments and necklaces, ear-rings and finger-rings, they remove them from her in order to make her repulsive. After that [the priest] takes a common rope and binds it over her breasts. Whoever wishes to look upon her comes to look … All women are permitted to look upon her, as it is said, That all women may be taught not to do after your lewdness. Tractate Sotah 7a-b
 
Notice that the woman is presumed to be guilty, even though she denies it. Her husband has no direct evidence against her, and the outcome of her trial by ordeal is not yet known. Still, she is held up as an example "that all women may be taught not to do after your lewdness."
 
In American society, most women would find it difficult to maintain dignity when stripped to the waist and put on pubic display, particularly under these circumstances.

Nathan Lewin, in his brief to the US Supreme Court, echoes the words of Rabbi Justice Elon: "Jewish Law was particularly insistent on the preservation of even a criminal's rights and dignity during the course of punishment."

Supreme Court Justice Ruth Bader Ginsburg was nominated to the United States Court of Appeals for the District of Columbia Circuit by President Jimmy Carter and sworn in June 30,1980. She was nominated Associate Justice of the Supreme Court of the United States by President Bill Clinton and sworn in August 10, 1993. Along with Justices Scalia and Breyer, Justice Ginsburg attended the kosher dinner held at the Supreme Court building on November 5, 2002, to mark the founding of the Washington-based National Institute for Judaic Law.(1) Justice Ginsburg received the American Jewish Committee Award for Distinguished Jewish American and Israeli Feminists in January 2000 at a ceremony in the Israeli Knesset. See And So a Talmud Marriage Ends (40)

Supreme Court Justice Stephen G. Breyer was nominated Judge, United States Court of Appeals for the First Circuit by President Jimmy Carter, December 10, 1980 and held Chief Judge, 1990-1994. He was nominated Associate Justice of the Supreme Court of the United States by President Bill Clinton, and sworn in August 3, 1994. Along with Justices Ginsburg and Scalia, Justice Breyer attended the kosher dinner held at the Supreme Court building on November 5, 2002, to mark the founding if the Washington-based National Institute for Judaic Law.(1)
 
Does Judge Breyer know about the 1991 Congressional Noahide declaration? (See America's New Government Church) Does he believe the Noahide Laws were the basis "upon which our great Nation was founded"? If so, he must wonder why he was asked to swear an oath to the US Constitution and Bill of Rights before taking office.

Justice Antonin Scalia was nominated to United States Court of Appeals for the District of Columbia Circuit by President Ronald Reagan and sworn in August 17, 1982. He was nominated Associate Justice of the Supreme Court of the United States by President Reagan and sworn in September 26, 1986. Along with Justices Ginsburg and Breyer, Justice Scalia attended the Kosher dinner held at the Supreme Court building on November 5, 2002, to mark the founding if the Washington-based National Institute for Judaic Law. According to the Jerusalem Post, "Scalia, in a letter to the institute's founder, Noson Gurary, wrote that 'Jewish law is certainly one of the oldest and most highly developed systems' and explained why the comparative study of legal traditions was beneficial."(1)
 
Has Justice Scalia's pen pal, Rabbi Noson Gurary, tipped him off about the Noahide Laws? Does Justice Scalia know he will soon have to stop calling himself a "devout Catholic," or lose his head? See America's New Government Church

The Stoning of Stephen is described in Acts 7:57-60, and has been a popular subject for dramatic paintings and sculptures for hundreds of years. According to Acts, Stephen was condemned by a single priest and taken outside the city gates. There is no mention of platform or pit in the St. Stephen incident, nor in any of the other stoning incidents in the New Testament.(2)

The Stoning of Stephen

The Stoning of Stephen

The Stoning of Stephen

The Stoning of Peter

Rabbi Dr. Epstein, editor of the Soncino Talmud:
 
"Thus the object of the legal system was not to preserve a particular dynasty or a certain form of government, but to establish social righteousness, and to maintain thereby a constant, close, inseparable connection between ethics and law, both flowing from the same Divine source … All laws, regulations and enactments had authority only in so far as they were able to stand the ethical test of the Torah. Once they passed this test, they were no longer regarded as man-made, but became identified with the very law of God." — Rabbi Isidore Epstein. (12)

Then took they [the Pharisees] up stones to cast at him: but Jesus hid himself, and went out of the temple, going through the midst of them, and so passed by. — John 8:59

You can help in the battle for Truth, Justice, and the American Way! Fight the forces of censorship and suppression of the Talmud, and bring about understanding between peoples of different faiths.
 
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Rabbi Yitzchok Adlerstein is the director of Project Next Step of the Simon Wiesenthal Center in Los Angeles and a professor of Jewish Law and Ethics at Loyola Law School. Rabbi Adlerstein calls the Talmud, "the world's oldest continuously-practiced legal code." Of Lewin's capital punishment brief, Rabbi Adlerstein states:
 
"Lewin builds his case on the strength of what likely is the world's oldest continuously-practiced legal code. He holds up the performance of Florida's temperamental electric chair to the scrutiny of the Jewish Talmud, the backbone of Jewish law for the last two millennia … he shows how Jewish legal tradition examined not only the outcome of punishment, but the procedure as well. Methods of execution were banished if the Talmudic sages believed them to subject the prisoner to more pain than absolutely necessary, or resulted in great shame or bodily disfigurement." (14)
 
In an interview with Jewish Journal, Rabbi Adlerstein confirms that a Gentile can be convicted in a Jewish court on the allegations of a single witness:
 
"For a Jew to be convicted by a Jewish court, two eyewitnesses must have seen the perpetrator about to commit the crime and warned him of the potential penalty. The murderer must verbally answer that he chooses to proceed anyway. (For a non-Jew, only one witness is required and no verbal warning.)" (5)
 
We can see why a Jew on trial for his life might prefer a Jewish court — it would be almost impossible to convict him. But what would Talmud-based law have to offer to non-Jew that is better than trial by a jury of peers, the Bill of Rights, and Equal Justice Under Law?

"US President George W. Bush sent greetings and applauded the institute for promoting an 'understanding of Judaism's rich tradition of legal thought. As we face new challenges and welcome new opportunities, our society must continue to promote good character and strong values. Through the study and teaching of Jewish law and philosophy you are contributing to a growing culture of service, citizenship, and responsibility in America,' Bush wrote." — Jerusalem Post (1)
 
The occasion was a kosher dinner held at the US Supreme Court Building in Washington, DC by the National Institute of Judaic Law to celebrate the occasion of the Institute's founding. According to the Jerusalem Post, the purpose of the Institute is to teach Judaic law to US law students and jurists, and to file legal opinions in US courts. (1)

This is the second in a 4-part series on the Death Penalty and Talmud Law.

"Meticulous Application of Stringent Rules" —?

The National Jewish COLPA/IAJLJ brief contains this statement that capital punishment in the Talmud was rare due to the Sages' concern for strict legal process:

The infrequency of the death penalty was attributable to the meticulous application of stringent rules regarding the admissibility and sufficiency of evidence. A court of at least 23 judges would have to be satisfied, to a legal certainty, that the capital offense had been committed before the court could impose a death sentence. Since the testimony of two eye-witnesses was required, and the witnesses were subjected to searching and detailed interrogation by the court, there was rarely an instance when the evidence met the prescribed legal standard.

— National Jewish COLPA/IAJLJ (13)

We have already noted at least four incidents of stoning, or attempted stoning in the New Testament (Acts 7, John 8:7, John 8:59, and John 10:22-31. Stephen was taken before one priest — not 23. We are not told how many Pharisees were involved in the attempted stonings of Jesus of Nazareth, but certainly St. John's account gives the impression that the stoning was to proceed without formal trial before 23 judges with "meticulous application of stringent rules." (13) The Pharisees gave indication that they intended to stone Jesus on the spot (John 8:59).

(Note: In upcoming Talmud excerpts, we sometimes omit non-germane text and footnotes. Omission of text is indicated by an ellipsis (…). To see the full text and footnotes, follow the hot link at the end of the excerpt. It is our pleasure to make available on line a number of Talmud tractates, so that you can see the excerpt in full context. We indicate unprintable Hebrew characters, words, and phrases with the symbol [H].)

Level of Proof

In Kiddushim 80a the Sages indicate that they flagellate, stone, and burn on "strength of presumption." This is somewhat at odds with the representation in the National Jewish COLPA/IAJLJ brief, so let us go directly to the Talmud text. The word niddah means a woman is menstruating, or was menstruating within the previous seven days. Sexual intercourse is forbidden during this period of niddah.

GEMARA. … For R. Hiyya b. Abba said in R. Johanan's name: We flagellate on the strength of presumption, we stone and burn on the strength if presumption, but we do not burn terumah on the strength of presumption. We flagellate on the strength of presumption, as Rab Judah. For Rab Judah said: If a woman is presumed a niddah by her neighbours, her husband is flagellated on her account as a niddah. (1) We stone and burn on the strength of presumption, as Rabbah son of R. Hunna. For Rabbah son of R. Huna said: If a man, woman, boy and girl lived (2) in a house [together], (3) they are stoned and burnt on each other's account. (4) R. Simeon b. Pazzi said in R. Joshua b. Levi's name on Bar Kappara's authority: It once happened that a woman came to Jerusalem carrying an infant on her back; she brought him up and he had intercourse with her, whereupon they were brought before Beth din and stoned. Not because he was definitely her son, but because he clung to her.

— Babylonian Talmud, Tractate Kiddushim 80a
Soncino 1961 Edition, page 411 (not available at Come and Hear™)

Kiddushin translator Rabbi Dr. H. Freedman amplifies the text with this footnote:

1. V. Glos. If he cohabits with her, though there are no actual witnesses of her menstruation.
2. Lit., 'were brought up'.
3. As husband and wife, son and daughter.
4. If the son cohabits with his mother, they are stoned; if the daughter with her father, they are burnt. Now, there is no actual proof of their relationship, save the general presumption.

— Rabbi Dr. Freedman

In the historical cases cited above, there is every indication that those who were flagellated, stoned, and burned were Israelites. The index for Tractate Kiddushin does not contain an entry for "heathen" or "Noahide." There is only one entry for "Gentile," listing page 189, not page 411.

Israelites, then, did not necessarily enjoy the "meticulous application of stringent rules" that Nathan Lewin, Rabbi Justice Elon, et al. say are the hallmarks of Talmudic justice. Recall the words of the National Jewish COLPA/IAJLJ brief: "Since the testimony of two eye-witnesses was required, and the witnesses were subjected to searching and detailed interrogation by the court, there was rarely an instance when the evidence met the prescribed legal standard." (13) Instead, the words of no less than five sages attest that the death penalty was meted out on the strength of the presumption that a) a crime was committed, and b) that the accused was guilty.

1,839 Missing Judges

Nathan Lewin, Elon, et al. state in their brief that, "A court of at least 23 judges would have to be satisfied, to a legal certainty, that the capital offense had been committed before the court could impose a death sentence." (13) According to the following Mishnah, one rabbi tried, condemned, and executed 80 women on the same day. What happened to the 23 judges who would have to be satisfied to legal certainty in each case?

MISHNAH. … WHEREUPON R. ELEIZER SAID TO THEM: BUT DID NOT SIMEON B. SHETAH HANG WOMEN AT ASHKELON? THEY RETORTED: [ON THAT OCCASION] HE HANGED EIGHTY WOMEN, NOTWITHSTANDING THAT TWO [MALEFACTORS] MUST NOT BE TRIED ON THE SAME DAY.

— Babylonian Talmud, Tractate Sanhedrin 45b
Soncino 1961 Edition, page 300

The translator adds in a footnote:

2. Hence this occurrence cannot be brought forward as a valid precedent, owing to its extraordinary nature. Witchcraft amongst Jewish women prevailed at that time to an alarming extent, and in order to prevent a combined effort on the part of their relations to rescue the culprits, he had to execute all of them at once. He hanged them, then, to prevent such practices and to avoid rescue, but his action is no precedent, and in itself was actually illegal, as the Sages pointed out.

— Jacob Shachter (7)

"Actually illegal," comments Rabbi Shachter, but the Talmud Sages noted the illegality only in the number of trials in that one day. None of the Sages mention the lack of 23 judges for each of the 80 women, and the impossibility of trying so many women according to proper procedure on a single day. Recall that proper procedure requires two witnesses for each of the accused, each of whom had "seen the perpetrator about to commit the crime and warned [the accused] of the potential penalty," each witness "subjected to searching and detailed interrogation by the court," and so forth. (5)

We have already seen that a priest who performed ritual while unclean got no formal trial; he was simply taken out of the temple and clubbed to death (see Sentence and Execution). And we have learned about the trial of the sotah; that trial did not rely upon a panel of 23 judges either. Now we will learn about another class of exceptions:

— Three Strikes and You're Out

MISHNAH. HE WHO WAS TWICE FLAGELLATED [FOR TWO TRANSGRESSIONS, AND THEN SINNED AGAIN,] IS PLACED BY BETH DIN IN A CELL AND FED WITH BARLEY BREAD, UNTIL HIS STOMACH BURSTS.

— Babylonian Talmud, Tractate Sanhedrin 81b
Soncino 1961 Edition, page 539

Beth din is a Jewish court (Soncino Talmud Glossary).

GEMARA. Because he has been twice flagellated Beth din places him in a cell? — R. Jeremiah answered in the name of Resh Lakish: The reference is to flagellation for an offence punishable by extinction, so that he is already liable to death [at the hand of God], but the time of his death has not yet come: since, however, he abandoned himself [to sin, by transgressing a third time], we hasten his death.

— Babylonian Talmud, Tractate Sanhedrin 81b
Soncino 1961 Edition, page 539

The above Mishnah and Gemara are somewhat ambivalent: The twice-flagellated person has committed an offense punishable by extinction, yet is apparently liable to death only at the hand of God, not man. He still lives, and sins a third time. The Sage says "we hasten his death" by causing his stomach to burst. However, this Gemara confirms what we suspect:

GEMARA. … But we learnt, ONE WHO WAS TWICE FLAGELLATED IS PLACED BY BETH DIN IN A CELL: thus, the Merciful One exempted him, yet we slay him!

— Babylonian Talmud, Tractate Sanhedrin 82b
Soncino 1961 Edition, page 549

The following completes a picture for us:

GEMARA. … AND FED 'BREAD OF ADVERSITY AND WATER OF AFFLICTION'. Why does this Mishnah teach, AND FED WITH BREAD OF ADVERSITY AND WATER OF AFFLICTION', whilst the former teaches, HE IS PLACED BY BETH DIN IN A CELL AND FED WITH BARLEY BREAD UNTIL HIS STOMACH BURSTS?

— Babylonian Talmud, Tractate Sanhedrin 81b
Soncino 1961 Edition, page 542

This passage provides an explanation of how this execution method works:

GEMARA. … R. Shesheth answered: In both cases he is fed with 'bread of adversity and water of affliction' for his intestines to shrink [thus blocking the passage], and then he is fed with barley bread until his stomach bursts.

— Babylonian Talmud, Tractate Sanhedrin 81b
Soncino 1961 Edition, page 542

— Cases With Disjoined Witnesses

Tractate Sanhedrin 81b contains the following Mishnah:

MISHNAH. ONE WHO COMMITS MURDER WITHOUT WITNESSES IS PLACED IN A CELL AND [FORCIBLY] FED WITH BREAD OF ADVERSITY AND WATER OF AFFLICTION'.

— Babylonian Talmud, Tractate Sanhedrin 81b
Soncino 1961 Edition, page 541

After this treatment the condemned is fed barley bread until his stomach bursts and he dies, as in Three Strikes and You're Out, above.

GEMARA. How do we know [that he committed murder]? — Rab said: On a 'disjoined' evidence. (6)

— Babylonian Talmud, Tractate Sanhedrin, 81b
Soncino 1961 Edition, page 541

Talmudic scholar Rabbi Dr. H. Freedman, who translated this section of the Soncino Tractate Sanhedrin, explains the significance of "disjoined" evidence in a footnote:

6. I.e., the murder was witnessed by two persons who were not standing together. In that case, he cannot be executed; hence he is imprisoned. cf. Mak. 6b.

— Rabbi Dr. Freedman (8)

Two Tracks for Justice

From the above, we can see a two-tier system of capital punishment under Talmudic law: Formal capital punishment that is meted out after a formal trial when two non-disjoined witnesses give evidence and the accused is convicted; and informal capital punishment where there is no formal trial and the accused, on presumption or otherwise, is executed in prison.

A system of lynchings and unofficial jailhouse executions would, of course, greatly reduce the number of official executions.

Rabbi Dr. H. Freedman and Jacob Shachter, translators of the Soncino Tractate Sanhedrin, confirm this. In their Introduction, they comment on Sanhedrin Chapter IX:

CHAPTER IX continues with the four modes of execution, and burning is stated to be the penalty of certain forms of incest. Those who are decapitated follow, viz., a murderer and the inhabitants of a condemned city. Noteworthy are the statements that a person who was twice flagellated and a murderer whose guilt, though adequately proved, was not attested with all the minutiae of the law, were irregularly put to death. This leads to the enumeration of other offences likewise punished irregularly. The Aggada deals at some length with the sinning of Israel at Baal Peor and Phineas's revenge.

— Rabbi Dr. Freedman and Jacob Shachter (11), emphasis added

Once again, it is as though Elon, Lewin, the National Jewish COLPA, IAJLJ, and the National Institute for Judaic Law do not expect anyone to read the Talmud. No one familiar with Tractate Sanhedrin could miss these "irregular" modes of capital punishment and the numerous methods for executing a death sentence without "meticulous application of stringent rules regarding the admissibility and sufficiency of evidence."

— No Numbing of Pain

The National Institute for Judaic Law brief does not mention this passage, but it is relevant:

GEMARA. … When one is led out to execution, he is given a goblet of wine containing a grain of frankincense, in order to benumb his senses, for it is written, Give strong drink unto him that is ready to perish, and wine unto the bitter in soul. And it has also been taught; The noble women in Jerusalem used to donate and bring it. If these did not donate it, who provided it? As for that, it is certainly logical that it should be provided out of the public [funds]: Since it is written. 'Give', [the implication is] of what is theirs.

— Babylonian Talmud, Tractate Sanhedrin 43a
Soncino 1961 Edition, pages 279-280

Frankincense does not have a medically recognized analgesic effect, and it has never been used in serious medical practice for that purpose. Obviously the grain of frankincense and goblet of wine was not effective in those ancient days, either: the following Mishnah states that the "wick" (i.e., molten lead) was thrown into the condemned man's mouth against his wishes, clearly indicating the condemned was conscious and struggling.

MISHNAH. … HIS MONTH WAS FORCED OPEN WITH PINCERS AGAINST HIS WISH, THE WICK LIT AND THROWN INTO HIS MOUTH, SO THAT IT DESCENDED INTO HIS BODY AND BURNT HIS BOWELS …

— Babylonian Talmud, Tractate Sanhedrin 52a
Soncino 1961 Edition, page 349

Death With Dignity

Jewish Law was particularly insistent on the preservation of even a criminal's rights and dignity during the course of punishment. Maimonides, after dealing with the types of punishment a court may impose, including imprisonment, concludes: "All these matters apply to the extent that the judge deems appropriate and necessary for the needs of the time. In all matters, he shall act for the sake of Heaven and not regard human dignity lightly … He must be careful not to destroy their dignity." According to Jewish law, a death sentence must be carried out with the minimum of suffering and without offense to human dignity. This is based on the Biblical verse, "Love your fellow as yourself," and the rule is, "Choose for him a humane death." From this we declare that even a condemned felon is your "fellow."

— National Jewish COLPA and IAJLJ (4) (ellipsis is in text of brief)

Remember, the parties who submitted the brief — the National Jewish Commission on Law and Public Affairs and the American Section of the International Association of Jewish Lawyers and Jurists — have stated that they wish Jewish principles concerning capital punishment to be used as a guide in our American situation.

National Jewish COLPA and IAJLJ are vitally interested in promoting the study of, and respect for, principles of Jewish Law as they have been applied throughout the history of the Jewish people. National Jewish COLPA and the national groups that it routinely represents promote and encourage in-depth study of Talmudic texts. IAJLJ has sponsored public lectures in Jewish Law and promoted the publication of scholarly essays in the field of Jewish Law.

— National Jewish COLPA and IAJLJ (9) (emphasis added)

As you read the following, consider how death with dignity might be achieved.

— Stripped Naked

MISHNAH. WHEN HE IS ABOUT FOUR CUBITS DISTANT FROM THE PLACE OF STONING, HE IS STRIPPED OF HIS GARMENTS. A MAN IS COVERED IN FRONT AND A WOMAN BOTH IN FRONT AND BEHIND: THIS IS R. JUDAH'S VIEW. BUT THE SAGES SAY: A MAN IS TO BE STONED NAKED BUT A WOMAN IS NOT TO BE STONED NAKED.

— Babylonian Talmud, Tractate Sanhedrin 44b
Soncino 1961 Edition, page 293

To the modern mind, public nakedness would not contribute to death with dignity.

— Buried In Manure

In both of burning and strangulation, the condemned are "buried up to their armpits" in manure.

MISHNAH. THE MANNER IN WHICH BURNING IS EXECUTED IS AS FOLLOWS: HE WHO HAD BEEN THUS CONDEMNED WAS LOWERED INTO DUNG UP TO HIS ARMPITS THEN A HARD CLOTH WAS PLACED WITHIN A SOFT ONE, WOUND ROUND HIS NECK, AND THE TWO LOOSE ENDS PULLED IN OPPOSITE DIRECTIONS, FORCING HIM TO OPEN HIS MOUTH.

— Babylonian Talmud, Tractate Sanhedrin 52a
Soncino 1961 Edition, page 349

MISHNAH. STRANGULATION WAS THUS PERFORMED: — THE CONDEMNED MAN WAS LOWERED INTO DUNG UP TO HIS ARMPITS, THEN A HARD CLOTH WAS PLACED WITHIN A SOFT ONE, WOUND ROUND HIS NECK, AND THE TWO ENDS PULLED IN OPPOSITE DIRECTIONS UNTIL HE WAS DEAD.

— Babylonian Talmud, Tractate Sanhedrin 52b
Soncino 1961 Edition, page 356

Again, to the modern mind, it is difficult to understand how burial in a pit of dung could be either dignifying or humane.

— Women Stripped to the Waist And Publicly Displayed

We have already learned about the woman subjected to trial by ordeal (the sotah) at the request of her suspicious husband. When she arrives at the temple for the trial, the priests ask her if she has been unfaithful; if she says yes, she is divorced. However, if she asserts her innocence, she is forcibly stripped to the waist and put on public display, as follows:

MISHNAH. … IF SHE SAYS, 'I AM PURE', THEY BRING HER UP TO THE EAST GATE WHICH IS BY THE ENTRANCE OF NICANOR'S GATE WHERE THEY GIVE SUSPECTED WOMEN WATER TO DRINK, PURIFY WOMEN AFTER CHILDBIRTH, AND PURIFY LEPERS. A PRIEST SEIZES HER GARMENTS — IF THEY ARE RENT THEY ARE RENT, AND IF THEY BECOME UNSTITCHED THEY ARE UNSTITCHED UNTIL HE UNCOVERS HER BOSOM, AND HE UNDOES HER HAIR. R. JUDAH SAYS: IF HER BOSOM WAS BEAUTIFUL HE DOES NOT UNCOVER IT, AND IF HER HAIR WAS BEAUTIFUL HE DOES NOT UNDO IT. — IF SHE WAS CLOTHED IN WHITE, HE CLOTHES HER IN BLACK. IF SHE WORE GOLDEN ORNAMENTS AND NECKLACES, EAR-RINGS AND FINGER-RINGS, THEY REMOVE THEM FROM HER IN ORDER TO MAKE HER REPULSIVE. AFTER THAT [THE PRIEST] TAKES A COMMON ROPE AND BINDS IT OVER HER BREASTS. WHOEVER WISHES TO LOOK UPON HER COMES TO LOOK WITH THE EXCEPTION OF HER MALE AND FEMALE SLAVES, BECAUSE HER HEART IS MADE DEFIANT THROUGH THEM. ALL WOMEN ARE PERMITTED TO LOOK UPON HER, AS IT IS SAID, THAT ALL WOMEN MAY BE TAUGHT NOT TO DO AFTER YOUR LEWDNESS.

— Babylonian Talmud, Tractate Sotah 7a-b
Soncino 1961 Edition, pages 30-31

Notice that the woman is presumed to be guilty, even though she denies it. Her husband has no proof that she has committed adultery, and the outcome of her trial by ordeal is not yet known. Still, she is held up as an example "that all women may be taught not to do after your lewdness."

In American society, even in ordinary circumstances, most of use would find it difficult to maintain our dignity when we are naked while those around us are clothed. Most of us would find it difficult to maintain dignity when buried up to our armpits in animal manure. Most women would find it difficult to maintain dignity when stripped to the waist and put on pubic display, especially when there is no evidence they have committed a crime.

If we find it difficult to maintain dignity in these situations generally, how much more sensitive might we be during the process of execution? We might even jump to the conclusion we were being purposely humiliated and degraded on the way to our death.

— Corpse Hanged Naked After Death

As mentioned above, the condemned is stripped naked for before stoning (Tractate Sanhedrin 44b). Following the stoning, the corpse is hanged on public display (Tractate Sanhedrin 44b, Tractate Sanhedrin 46a). No mention is made of re-clothing the corpse between these two procedures. To some, hanged naked and bloody in public after death would be the ultimate indignity, and no one would consider it an honor.

Scope of Capital Punishment Application

Recall that Rabbi Elon and advocate Lewin assert that capital punishment was infrequently used by the rabbinic Sages of the Talmud. Browsing through the Tractate Sanhedrin, however, we discover that capital is used on a wide array of infractions.

— To Discipline Teenagers

At parental request, capital punishment is used to discipline pubescent male children (ellipsis […] indicates non-germane text omitted):

MISHNAH. THE FOLLOWING ARE STONED: … A WAYWARD AND REBELLIOUS SON.

— Babylonian Talmud, Tractate Sanhedrin 53a
Soncino 1961 Edition, page 359

MISHNAH. 'A STUBBORN AND REBELLIOUS SON': WHEN DOES HE BECOME LIABLE TO THE PENALTY OF A STUBBORN AND REBELLIOUS SON'? FROM THE TIME THAT HE PRODUCES TWO HAIRS UNTIL HE GROWS A BEARD RIGHT ROUND (BY WHICH IS MEANT THE HAIR OF THE GENITALS, NOT THAT OF THE FACE, BUT THAT THE SAGES SPOKE IN POLITE TERMS), FOR IT IS WRITTEN, IF A MAN HAVE A STUBBORN AND REBELLIOUS SON: 'A SON', BUT NOT A DAUGHTER; 'A SON', BUT NOT A FULL-GROWN MAN. WHILST A MINOR IS EXEMPT, SINCE HE DOES NOT COME WITHIN THE SCOPE OF THE COMMANDMENTS.

— Babylonian Talmud, Tractate Sanhedrin, 68b
Soncino 1961 Edition, page 465

See also Sanhedrin 71b and 72a for further information.

— To Encourage Doctrinal Conformity

MISHNAH. 'A FALSE PROPHET'; HE WHO PROPHESIES WHAT HE HAS NOT HEARD, OR WHAT WAS NOT TOLD TO HIM, IS EXECUTED BY MAN.

— Babylonian Talmud, Tractate Sanhedrin 89a
Soncino 1961 Edition, page 590

MISHNAH. 'AN ELDER REBELLING AGAINST THE RULING OF BETH DIN' [IS STRANGLED] …

— Babylonian Talmud, Tractate Sanhedrin 86b
Soncino 1961 Edition, page 572

— To Teach A Civic Lesson

The news of the upcoming execution of an unorthodox elder is broadly promoted to instill fear in the pubic and to discourage others from acting "presumptuously."

MISHNAH. HE [THE REBELLIOUS ELDER] WAS EXECUTED NEITHER BY HIS LOCAL BETH DIN NOR BY THE BETH DIN AT JABNEH, BUT WAS TAKEN TO THE GREAT BETH DIN IN JERUSALEM AND KEPT THERE UNTIL THE [NEXT] FESTIVAL AND EXECUTED THEREON, FOR IT IS WRITTEN, 'AND ALL THE PEOPLE SHALL HEAR AND FEAR, AND DO NO MORE PRESUMPTUOUSLY:' THIS IS R. AKIBA'S OPINION. R. JUDAH SAID: HIS JUDGMENT MUST NOT BE DELAYED, BUT HE IS EXECUTED IMMEDIATELY, WHILST PROCLAMATIONS ARE INDITED AND SENT BY MESSENGERS TO ALL PLACES, 'SO AND SO HAS BEEN SENTENCED TO DEATH AT BETH DIN.'

— Babylonian Talmud, Tractate Sanhedrin 89a
Soncino 1961 Edition, page 589

— To Punish Improper Ritual

We have already discussed the punishment of a priest who performs ritual while unclean; he is clubbed to death by his colleagues (see Sentence and Execution).

— For Bearing False Witness

GEMARA. … Again Raba said: [If witnesses testify] that so and so committed adultery with a betrothed woman and their evidence is refuted, they are liable to capital punishment …

— Babylonian Talmud, Tractate Sanhedrin 10a
Soncino 1961 Edition, page 39

GEMARA. … Raba said further: [If witnesses testify] that so and so committed an unnatural crime with an ox, and the evidence is afterwards refuted, they are liable to capital punishment, but not to be mulcted in respect of the ox.

— Babylonian Talmud, Tractate Sanhedrin 10a
Soncino 1961 Edition, page 40

— For Forbidden Sex

Homosexuality: This Mishnah states that sex between two males is punishable by death. (Homosexuality between a man and a boy under nine was not punishable; see Sex with Children by Talmud Rules. Homosexuality between children was not punishable; see below.)

MISHNAH. HE WHO COMMITS SODOMY WITH A MALE OR A BEAST, AND A WOMAN THAT COMMITS BESTIALITY ARE STONED. IF THE MAN HAS SINNED, WHEREIN HAS THE ANIMAL OFFENDED? BUT BECAUSE MAN WAS ENTICED TO SIN THEREBY, SCRIPTURE ORDERED THAT IT SHOULD BE STONED. ANOTHER REASON IS THAT THE ANIMAL SHOULD NOT PASS THROUGH THE STREETS, WHILST PEOPLE SAY, THIS IS THE ANIMAL ON ACCOUNT OF WHICH SO AND SO WAS STONED.

— Babylonian Talmud, Tractate Sanhedrin 54a
Soncino 1961 Edition, page 367

However, Jewish and non-Jewish male children may have sex with each other, provided the Jewish child does not become accustomed to it.

GEMARA. They decreed in connection with a heathen child that it should cause defilement by seminal emission so that an Israelite child should not become accustomed to commit pederasty with him.

— Babylonian Talmud, Tractate Abodah Zarah 36b
Soncino 1961 Edition, page 178

— For Sex With Other Jews' Wives and Fiancées

GEMARA. … "He who commits adultery with a married woman is executed by strangulation …"

— King David, as quoted in Babylonian Talmud, Tractate Sanhedrin 107a
Soncino 1961 Edition, page 732

[Ellipsis indicates omitted text.]

MISHNAH. THE FOLLOWING ARE STONED: … HE WHO COMMITS ADULTERY WITH A BETROTHED MAIDEN …

— Babylonian Talmud, Tractate Sanhedrin 53a
Soncino 1961 Edition, page 359

MISHNAH. THE FOLLOWING ARE STRANGLED … ONE WHO COMMITS ADULTERY …

— Babylonian Talmud, Tractate Sanhedrin 84b
Soncino 1961 Edition, page 558

However, adultery with the wife of a minor or a non-Jew is permitted.

GEMARA. Our Rabbis taught: [And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife the adulterer and the adulteress shall surely be put to death]. 'The man' excludes a minor; 'that committeth adultery with another man's wife' excludes the wife of a minor; 'even he that committeth adultery with his neighbour's wife' excludes the wife of a heathen …

— Babylonian Talmud, Tractate Sanhedrin 52b
Soncino 1961 Edition, page 356

— For Betrothed Women Who "Play The Harlot"

As we have already seen, if a betrothed maiden "plays the harlot," she is executed.

GEMARA. … Shila taught: There are three modes [of execution] in the case of a [betrothed] damsel [who played the harlot].

— Babylonian Talmud, Tractate Kethuboth, 44b
Soncino 1961 Edition, page 254

For more information on the capital offense laws pertaining to consensual sex acts, it is recommended that the reader use the Come and Hear™ Search Engine, searching on words such as virgin, wife, maiden, harlot, woman, adultery, etc.

— For Bestiality

MISHNAH. … CAPITAL CASES ARE ADJUDICATED BY TWENTY-THREE. THE PERSON OR BEAST CHARGED WITH UNNATURAL INTERCOURSE, BY TWENTY-THREE, AS IT IS WRITTEN, THOU SHALT KILL THE WOMAN AND THE BEAST, AND ALSO, YE SHALL SLAY THE BEAST.
 
THE OX TO BE STONED IS TRIED BY TWENTY-THREE, AS IT IS WRITTEN, THE OX SHALL BE STONED AND ITS OWNER SHALL BE PUT TO DEATH …

— Babylonian Talmud, Tractate Sanhedrin 2a
Soncino 1961 Edition, page 2

MISHNAH. HE WHO COMMITS SODOMY WITH A MALE OR A BEAST, AND A WOMAN THAT COMMITS BESTIALITY ARE STONED.

— Babylonian Talmud, Tractate Sanhedrin 54a
Soncino 1961 Edition, page 367

Note: Special allowances may have been made "when a Jew committed bestiality in ignorance." See discussion in Gemara of Tractate Sanhedrin 55a and 55b, and Dr. Freedman's commentary in footnotes. Dr. Freedman comments: "When bestiality is committed in ignorance, one has not sinned, yet he has greatly degraded himself."

— For Religious Infractions

— — Sorcery

[Ellipsis indicates omitted text.]

MISHNAH. THE FOLLOWING ARE STONED … A SORCERER …

— Babylonian Talmud, Tractate Sanhedrin 53a
Soncino 1961 Edition, page 359

— Uttering God's Name / Blasphemy

MISHNAH. THE BLASPHEMER IS PUNISHED ONLY IF HE UTTERS [THE DIVINE] NAME.

— Babylonian Talmud, Tractate Sanhedrin 55b
Soncino 1961 Edition, page 378

MISHNAH. THE FOLLOWING ARE STONED … A BLASPHEMER …

— Babylonian Talmud, Tractate Sanhedrin 53a
Soncino 1961 Edition, page 359

— Desecrating The Sabbath

MISHNAH. THE FOLLOWING ARE STONED: … HE WHO DESECRATES THE SABBATH …

— Babylonian Talmud, Tractate Sanhedrin 53a
Soncino 1961 Edition, page 359

— Idolatry

MISHNAH. THE FOLLOWING ARE STONED … AN IDOLATER … HE WHO INCITES [INDIVIDUALS TO IDOLATRY] …

— Babylonian Talmud, Tractate Sanhedrin 53a
Soncino 1961 Edition, page 359

Mass Capital Punishment

— On Unwanted Citizens

Let us revisit the Mishnah describing the hanging of eighty women on the same day (discussed above):

MISHNAH. … THE SAGES SAY: A MAN IS HANGED, BUT NOT A WOMAN. WHEREUPON R. ELIEZER SAID TO THEM: BUT DID NOT SIMEON B. SHETAH HANG WOMEN AT ASHKELON? THEY RETORTED: [ON THAT OCCASION] HE HANGED EIGHTY WOMEN, NOTWITHSTANDING THAT TWO [MALEFACTORS] MUST NOT BE TRIED ON THE SAME DAY.

— Babylonian Talmud, Tractate Sanhedrin 45b
Soncino 1961 Edition, page 300

Indeed, it would require quite a capital punishment infrastructure to administer the execution of 80 women on one day in the same town. This example suggests that despite National Jewish COLPA/IAJLJ representations, capital punishment was readily used, and support structures for capital punishment were readily available and in use.

— For Tribes, Towns, and Cities that Stray

On determination that the majority of people in a tribe, town, or city is moving away from Judaism to worship "other gods," Talmudic courts may exterminate the entire population — men, women, children, innocent and guilty alike, all are killed and the city is burned to the ground. A footnote cites Deuteronomy 13:14 as the authority. (Ellipsis indicates omitted text.)

MISHNAH. … MULTITUDES ARE DECAPITATED; HENCE THEIR POSSESSIONS ARE DESTROYED … THOU SHALT SURELY SMITE THE INHABITANTS OF THAT CITY WITH THE EDGE OF THE SWORD … DESTROYING IT UTTERLY, AND ALL THAT IS THEREIN …

— Babylonian Talmud, Sanhedrin 111b
Soncino 1961 Edition, page 766

This is not a trial of individuals, but the trial of the "tribe" (town, or city) as a single entity, with a single verdict and a single sentence for all.

MISHNAH. … A TRIBE … CAN ONLY BE TRIED BY A COURT OF SEVENTY-ONE … NO CITY CAN BE DECLARED CONDEMNED SAVE BY A DECREE OF A COURT OF SEVENTY-ONE. A FRONTIER TOWN CANNOT BE CONDEMNED NOR THREE CITIES AT A TIME, BUT ONLY ONE OR TWO.

— Babylonian Talmud, Tractate Sanhedrin 2a
Soncino 1961 Edition, pages 2-3

Even two such cities may be doomed to extermination in a single trial. That is the established law of the Talmud, as recorded in the Mishnah.

Note: To be labeled an idolater, it is not necessary to worship idols. Those Jews who have refused to acknowledge the Talmud and its Oral Law and who have insisted on the primacy of the Written Law (the Old Testament) have been labeled "idolaters" by rabbinical Judaism. See Rabbi Michael L. Rodkinson's summary, in Critical Words of Talmud Study.

Frequency Of Capital Punishment — Makkoth 7a

According to the National Jewish COLPA/IAJLJ Supreme Court brief, executions under Jewish law were rare:

Although the Biblical text appears to contemplate frequent imposition of capital punishment, the weight of authority among rabbis of the Mishnaic period (1st-3rd centuries of the Common Era), who first committed to writing what had theretofore been transmitted from generation to generation as the Oral Law, clearly condemned frequent executions. The Mishnah in the tractate Makkoth (7a) declared:
 
The Sanhedrin that executes one person in seven years is called "murderous." Rabbi Elazar ben Azariah says that this extends to one execution in seventy years. Rabbi Tarfon and Rabbi Akiva say, "If we had been among the Sanhedrin, no one would ever have been executed." Rabbi Simon ben Gamliel responds, "Such an attitude would increase bloodshed in Israel."…

— National Jewish COLPA/IAJLJ (13)

Come and Hear™ believes that the National Jewish COLPA/IAJLJ legal team took Makkoth 7a out of context (see Abuse of Context); but let us put that thesis aside for a moment, and evaluate the claim against what we already know. Against Makkoth 7a we must balance other passages in the Talmud that indicate that capital punishment was frequently used.

— Rabbinical Death Row

This passage seems to argue that the death penalty was used frequently.

MISHNAH. … IF A NUMBER OF CONDEMNED PERSONS DIFFERING IN THEIR DEATH SENTENCES BECAME MIXED UP WITH ONE ANOTHER, THEY ARE EXECUTED BY THE MOST LENIENT [DEATH]. IF CRIMINALS CONDEMNED TO STONING [BECAME MIXED UP] WITH OTHERS CONDEMNED TO BURNING, — R. SIMEON SAID: THEY ARE STONED, BECAUSE BURNING IS SEVERER … IF MEN CONDEMNED TO DECAPITATION BECAME MIXED UP WITH OTHERS CONDEMNED TO STRANGLING, — R. SIMEON SAID: THEY ARE [ALL] DECAPITATED; THE SAGES SAY: THEY ARE STRANGLED. …

— Babylonian Talmud, Tractate Sanhedrin 79b
Soncino 1961 Edition, page 533

This indicates that the rabbis had their own Death Row, and that it was relatively crowded. There would be no practical reason to maintain all these condemned persons in their cells over a period of seven years, or even seventy years, executing one at a time.

— Was Talmudic Law Practiced, Ignored, Or Imagined?

The National Jewish COLPA/IAJLJ statement that the death penalty was used infrequently in the Talmudic justice system puts the student in a quandary.

From Rabbi Dr. Hertz, we learn that there were two principal centers in which Talmudic law was developed: Babylon and Palestine. (15) While Rabbi Dr. Hertz does not give population statistics for the thousands of years in which Talmudic judges administered their own courts from early Talmudic days to present time, folios 16, 17, and 18 of the Sanhedrin bear witness to an active, living court system with tens of thousands of judges administering Talmudic justice to the citizens.

GEMARA. … Our Rabbis taught: And place such over them to be rulers of thousands, rulers of hundreds, rulers of fifties and rulers of tens: (10) The rulers of thousands amounted to six hundred; (11) those of hundreds, six thousand; those of fifties, twelve thousand; and those of tens, sixty thousand. Hence the total number of judges in Israel was seventy-eight thousand and six hundred.

— Babylonian Talmud, Tractate Sanhedrin, 18a
Soncino 1961 Edition, page 90

Talmud scholar and translator Jacob Shachter amplifies the text with footnotes:

10. Ex. XVIII, 21.
11. Since the population consisted of 600,000. Likewise for the other officials. (Ex. XII, 35.). [This is to teach that the judges were included in the number of each respective group (Tanh. Mishpatim].

— Jacob Shachter

According to this Gemara, the number of judges required for 600,000 people was 78,600. There was one judge for every 7.63 people, an extraordinarily high citizen-to-judge ratio.

Consider the broad array of crimes for which capital punishment was prescribed. If we are to believe the statement that a Sanhedrin that effected an execution once in seven or seventy years was branded "destructive," we must believe that, in seven or seventy years, of all those 600,000 souls:

1. No one used the Divine name, or violated the Sabbath; no one committed idolatry, murder, kidnapping, incest, adultery with betrothed maidens, adultery with married women, homosexuality, or bestiality. We must believe that no parents complained of rebellious teenage sons, that priests did not perform rituals while unclean, no one bore false witness in a capital case, that there were no rebellious elders, and no citizens needed to be made afraid to follow rebellious elders. We must believe that no tribes, towns, or cities engaged in idolatry, and that no one attempted to incite them to do so. We must also believe no one was falsely convicted of those crimes.

If that does not seem likely, we must consider a second option:

2. The 78,600 rabbis were not applying what they believed was God's law, and that no actions were taken by the rabbinical hierarchy to put matters right.

Recall that the Elon/Lewin brief calls the Talmudic law "the oldest and most venerable legal system known to man." (9) No legal system, especially "the oldest and most venerable known to man" becomes venerable through lack of application.

Some argue that much in the Talmud is theoretical, a record of the Sages arguing, attempting to arrive at principles and fine points of law. They may wish to argue that much of what the Talmud says about capital punishment is theoretical in nature.

It is true that some passages in the Talmud deal with theoretical issues. The following passages illustrate the point. In this passage, the Sages are attempting to determine liability in this case: A man falls from a roof and, as a result, accidentally inserts his penis in his sister-in law, who is, somehow, correctly positioned below him on the ground.

GEMARA. … There can be no compulsion in sexual intercourse since erection depends entirely on the will! But when he slept? Surely Rab Judah ruled that one in sleep cannot acquire his sister-in-law! But when accidental insertion occurred? Surely Rabbah stated: One who fell from a roof and his fall resulted in accidental insertion, is liable to pay an indemnity, for four things, and if the woman was his sister-in-law no kinyan is thereby constituted! — It is when, for instance, his intention was intercourse with his wife and his sister-in-law seized him and he cohabited with her.

— Babylonian Talmud, Tractate Yebamoth 53b - 54a
Soncino 1961 Edition, page 356

Note the special use of the word "cohabited." (10)

Here is another hypothetical discussion of legal theory concerning a union of mice who execute a cat.

GEMARA. … A man borrowed a bucket from his neighbour, and it broke. When he came before R. Papa, he said to him, 'Go and bring witnesses that you did not put it to foreign use, and you will be free from liability.'
 
A man borrowed a cat from his neighbour; the mice then formed a united party and killed it. Now, R. Ashi sat and pondered thereon: How is it in such a case? Is it as though it had died through its work, or not?

— Babylonian Talmud, Tractate Baba Mezi'a 97a
Soncino 1961 Edition, page 559

Compare those two theoretical discussions with the following:

MISHNAH. … R. ELEAZAR B. ZADOK SAID: IT ONCE HAPPENED THAT A PRIEST'S DAUGHTER COMMITTED ADULTERY, WHEREUPON BUNDLES OF FAGGOTS WERE PLACED ROUND ABOUT HER AND SHE WAS BURNT. THE SAGES REPLIED, THAT WAS BECAUSE THE BETH DIN AT THAT TIME WAS NOT WELL LEARNED IN LAW.

— Babylonian Talmud, Tractate Sanhedrin 52a
Soncino 1961 Edition, page 350

This passage does not appear theoretical. It seems to describe a real case. And the preponderance of the passages on capital punishment reviewed in this essay have obviously described real cases, and described real law applied to those cases.

The National Jewish COLPA/IAJLJ statement that execution was rare under Talmudic judges does pass the common sense test. Now let's evaluate Makkoth 7a in context.

Thank you for your consideration of the above,
Carol A. Valentine,  Ear@Come-and-Hear.com
July 14, 2003 ( This article is on line at http://www.come-and-hear.com/editor/capunish_2.html )
 

NEXT:   Death Penalty 3: Abuse of Context
 

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