JEWISH EUGENICS AND OTHER ESSAYS
June 6, 2008 on 9:26 pm | Friedrich Braun | Eugenics | | Email This Post | Print this PostTHREE PAPERS READ BEFORE THE NEW YORK BOARD OF JEWISH MINISTERS 1915
I
JEWISH EUGENICS
By Rabbi Max Reichler
II
THE DEFECTIVE IN JEWISH LAW AND
LITERATURE
By Rabbi Joel Blau
III
CAPITAL PUNISHMENT AMONG
THE JEWS
By Rev. Dr. D. de Sola Pool
NEW YORK
BLOCH PUBLISHING COMPANY
1916
< => k
Copyright, 1916, by
BLOCH PUBLISHING COMPANY
CONTENTS
I. Jewish Eugenics 7
II. The Defective in Jewish Law and
Literature 23
III. Capital Punishment Among the Jews . 53
424753
Jewish Eugenics
Rabbi Max Reichler. B. A.
JEWISH EUGENICS
Who knows the cause of Israel’s survival? Why-
did the Jew survive the onslaughts of Time, when
others, numerically and politically stronger, suc-
cumbed? Obedience to the Law of Life, declares
the modern student of eugenics, was the saving
quality which rendered the Jewish race immune
from disease and destruction. “The Jews, ancient
and modern,” says Dr. Stanton Coit, “have always
understood the science of eugenics, and have gov-
erned themselves in accordance with it; hence the
preservation of the Jewish race.” 1
I. Jewish Attitude
To be sure eugenics as a science could hardly
have existed among the ancient Jews; but many
eugenic rules were certainly incorporated in the
large collection of Biblical and Rabbinical laws.
Indeed there are clear indications of a conscious
effort to utilize all influences that might improve the
inborn qualities of the Jewish race, and to guard
against any practice that might vitiate the purity of
1 Ci. also Social Direction of Human Evolution, by Prof.
William E. Kellicott, 1911, p. 231.
7
8 Jewish Eugenics
the race, or “impair the racial qualities of future
generations” either physically, mentally, or morally. 1
The Jew approached the matter of sex relationship
neither with the horror of the prude, nor with the
passionate eagerness of the pagan, but with the sane
and sound attitude of the far-seeing prophet. His
goal was the creation of the ideal home, which to
him meant the abode of purity and happiness, the
source of strength and vigor for body and mind. 8
II. Home of the Pure Bloods
The very founder of the Jewish race, the patriarch
Abraham, recognized the importance of certain in-
herited qualities, and insisted that the wife of his
“only beloved son” should not come from “the
daughters of the Canaanites,” but from the seed of a
superior stock. 4
In justifying this seemingly narrow view of our
patriarch, one of the Rabbis significantly suggests:
“Even if the wheat of your own clime does not
appear to be of the best, its seeds will prove more
productive than others not suitable to that particular
soil.” 5
This contention is eugenically correct. Davenport
tells of a settlement worker of this city who made
2 Sir Francis Galton defines eugenics as “the science which
deals with all influences that improve the inborn qualities of
the race.”
3 Cf. Ps. cxxviii, 3-4. The National Conference on Race
Betterment which met recently at Battle Creek declared that
“the core of race betterment consists in promoting more and
better homes.”
4 Gen. xxiv, 3-4.
*Ber. Rabbah 59, 11.
Jewish Eugenics 9
special inquiry concerning a certain unruly and
criminally inclined section of his territory, and
found that the offenders came from one village in
Calabria, known as “the home of the brigands.” 8
Just as there is a home of the brigands, so there may
be “a home of the pure bloods.”
Eugenists also claim that though consanguineous
marriages are in most cases injurious to the progeny,
yet where relatives possess “valuable characters,
whether apparent or not, marriages between them
might be encouraged, as a means of rendering per-
manent a rare and valuable family trait, which
might otherwise be much less likely to become an
established characteristic.” 7 Abraham’s servant,
Eliezer, so the Midrash states, desired to offer his
own daughter to Isaac, but his master sternly re-
buked him, saying: “Thou art cursed, and my son
is blessed, and it does not behoove the cursed to
mate with the blessed, and thus deteriorate the
quality of the race.” 8
III. Early Marriages
The aim of eugenics is to encourage the repro-
duction of the good and “blessed” human proto-
plasm and the elimination of the impure and
^Heredity in Relation to Eugenics, by Charles B. Davenport,
New York, 1911, p. 183.
1 Social Direction of Human Evolution, p. 154; Heredity in
Relation to Eugenics, p. 185. The Biblical expression “a bone
of my bones” (Gen. ii, 23), refers, according to the Rabbis, to
a man who marries one of his relatives. (Bereshith Rabbah
18, 5). The marriage between uncle and niece is also recom-
mended (Yebamoth 63b).
8 Ber. Rabbah 59, 12 ; cf . Gen. ix, 25-26.
10 Jewish Eugenics
“cursed” human protoplasm. According to Francis
Galton, it is “to check the birthrate of the unfit, and
to further the productivity of the fit by early
marriages and the rearing of healthful children.”
The Rabbis may or may not have had such a
definite purpose in mind, but their Halachic legis-
lation and Haggadic observations naturally tended
to bring about the same results. Early marriages
were praised as most desirable. Rabbi Ishmael
claimed that God was greatly displeased with the
man who did not marry before the age of twenty. 9
Rav Hunah refused to see Rav Hamnuna, a man of
great repute (adam gadol), after the former discov-
ered that his visitor was a bachelor. 10 “He who is
not married,” runs a Talmudic saying, “is destitute
of all joy, blessing, and happiness.” 11 “He has no
conception of the sweetness of life”; 12 indeed “he
cannot be regarded as a man at all.” 13
IV. Reproduction
Among the seven types not acceptable before God
are included both the unmarried man and the
married man without children. 14 A man without
children experiences death in life, 16 and surely de-
serves our pity when he departs from this earth. 16
»Kiddushin 29b.
“Ibid.
“Midrash Lekach Tob, Gen. 2, ed. Buber p. 21.
12 Ber. Rabbah ch. 17.
13 Yalkut Gen. ii, 23.
“Pesachim 113b.
16 Nedarim 64b.
16 M. K. 27b.
Jewish Eugenics 11
For only he is dead who leaves no son behind to
continue his work, while he who leaves even one
worthy son is not really dead but merely sleeps. 17
He who does not contribute his share to the” repro-
duction of the race, reduces the divine type, 18
causes the Shechinah to depart from Israel, 19 and
is guilty of murder. 20 The duty of reproduction is
incumbent on all, both young and old. 21
The Rabbis, like the eugenists of to-day, measured
the success of a marriage by the number and quality
of the offspring. In their judgments the main
objects of marriage were the reproduction of the
human race (leshem piryah veribyah), and the
augmentation of the favored stock (lethikun
havlad). 22 Hence they advised that an extremely
tall man should not marry an extremely tall woman,
lest the children be awkwardly tall ; nor should one
of short stature marry a woman of the same size,
lest their offspring be dwarfed. For the same
reason, the intermarriage between blonds or between
dark-complexioned people was not countenanced. 28
A number of precautions in sexual relations were
prescribed in order to prevent the birth of defectives,
“B. B. 110b.
“Yebamoth 63b.
“Ibid. 64a.
2<>Ibid 63b, 64a.
“Ibid 62b. Cf. Koheleth Rabbah 7, 8, also Social Direction
of Human Evolution, p. 124, concerning pathological defects
of first born and earlier members of the family.
22Cf. Tur Eben Haezer ch. 25.
“Bechoroth 45b.
12 Jewish Eugenics
such as lepers, 24 epileptics, 25 the deaf and the dumb,
the lame and the blind. 26
V. Intelligent Love
Raba advised every young man not to marry a
girl before he knew all about her immediate family,
especially about her brothers, for “children usually
inherit the traits of their mother’s brothers.” 27
“Take your time,” counsels a Talmudic proverb,
“before you ask a woman to be your wife”; 28 in
other words, “fall in love intelligently.” Other well-
known Rabbinic maxims are: “a man drinketh not
out of a cup which he hath not inspected,” 29 and “a
bride whose eyes are defective, ought to undergo a
general physical examination.” 30
In the opinion of Rabbi Jonathan both Eliezer, the
servant of Abraham, and Saul, king of Israel, acted
most indiscreetly by treating marriage in a rather
frivolous manner. Eliezer said : “Behold the virgin
which will say drink, and I will also draw for the
camels, that is the woman whom the Lord hath
appointed for my master’s son.” Suppose that
woman had some physical defects, would she have
been a suitable mate for Isaac? Similarly Saul
proclaimed : “The man who killeth Goliath, the king
will give him his daughter.” If that man had been
24 Sifra, Mezora ch. 3.
“Pesachim 112b.
“Nedarim 20a.
* 7 B. B. 110a.
28 Yebamoth 63a.
2»Kethuboth 75b.
ao Shir Hashirim Rabbah 4, 1-3 ; cf . Taanith 24a.
Jewish Eugenics 13
a slave or possessed other hereditary defects, would
Saul have sanctioned the marriage? 81
VI. Non-Eugenic Marriages
The attempt to limit the multiplication of the
undesirable elements in the Jewish race, resulted in
three kinds of prohibitions. First, prohibition
against the marriage of defectives by reason of
heredity (pesul yochesin) ; secondly, the prohibition
against the marriage of personal defectives (debar
shebagufon) ; thirdly, the prohibition against con-
sanguineous marriages (ervah). 52
Besides the prohibition against defective mar-
riages mentioned in the Mosaic code, 83 the Talmud
forbade one to marry into a confirmed leprous or
epileptic family, 34 or to marry a woman who had
buried three husbands. 35 The union between an
old man and a young girl was condemned in un-
equivocal terms. 36 Persons or families manifesting
continuous antagonism to each other were advised
not to intermarry. 37 Great, in the eyes of the Rabbis,
was the offense of him who married a woman from
31 Taanith 4a.
32 Tur Eben Haezer, Piryah Veribyah, ch. 4.
33 Deuteronomy xxiii, 2.
34 Yebamoth 64a.
85 Niddah 64a. It is interesting to note that a late authority
insists that the same rule should apply to a man who buried
three wives. Cf. Beer Heteb to Eben Haezer, Ishoth 9, 2.
36 Sanhedrin 76a; cf. also Yebamoth 106b and Ruth Rabbah
3, 10.
37 Kiddushin 71b. Cf. Heredity in Relation to Eugenics, p. 8,
where the suggestion is made that the curious antipathy of
red-haired persons of the opposite sexes for each other, may
be an eugenic antipathy.
14 Jewish Eugenics
an element classed among the unfit. His act was as
reprehensible as if he had dug up every fertile field
in existence and sown it with salt. 38 A quintuple
transgression was his, 30 for which he will be bound
hand and foot by Elijah, the great purifier, 40 and
flogged by God himself. “Woe unto him who de-
teriorates the quality of his children and defiles the
purity of his family,” is the verdict of Elijah
endorsed by God. 41 On the other hand, the mating
of two persons possessing unique and noble traits
cannot but result in the establishment of superior
and influential families. 42 When God will cause his
Shechinah to dwell in Israel, only such which
scrupulously preserved the purity of their families,
will be privileged to witness the manifestation of
the Holy Spirit. 43
VII. Psychical Eugenics
The distinctive feature, however, of Jewish
eugenics lies in the greater emphasis laid on the
psychical well-being of posterity, in contradistinc-
tion to the merely physical well-being which is the
chief concern of modern eugenists. At the Congress
of Eugenics recently held at London, one of our
modern eugenists, Professor Samuel C. Smith of
the University of Minnesota, exclaimed : “If I were
to choose my own father, I would rather have a
38 Kiddushin 70a.
89 Aboth Derabbi Nathan, ch. 26.
*°Cf. Kiddushin 71a.
“Kiddushin 70a.
42 Bamidbar Rabbah 3, 4.
43 Kiddushin 70b.
Jewish Eugenics 15
robust burglar than a consumptive bishop.” The
Rabbis, on the other hand, tell us that when the
question came up whether or not the Gibeonites
should be permitted to intermarry with the children
of Israel, David tested them, in order to ascertain
not so much their physical fitness but rather their
psychical fitness, and found them wanting. He
discovered that they did not possess the three “unit
characters” peculiar to Israel, namely: sympathy,
modesty and philanthropy. He therefore thought it
eugenically inadvisable to allow their mating with a
spiritually better-developed stock. 44 Rabbi Levi
enumerates nine undesirable psychical qualities
which ought to be eliminated from amongst the
Jewish race. 45
VIII. Eugenics and Religion
The Jew took his spiritual mission as representing
a “kingdom of priests and a holy kingdom” quite
seriously, and used all possible eugenic means to
preserve those rare emotional and spiritual qualities
developed during centuries of slow progress and
unfolding. Intuitively he felt the truth, so well
expressed by a modern student of eugenics, that
“Religion would be a more effective thing, if every-
body had a healthy emotional nature ; but it can do
nothing with natures that have not the elements of
love, loyalty and devotion.” 46 The Rabbis would
say: Religion can do nothing with natures that
“Yebamoth 79a.
“Nedarim 20b.
“Heredity in Relation to Eugenics, p. 255.
16 Jewish Eugenics
have not the elements of sympathy, modesty and
philanthropy. Hence they urged that a man should
be willing to offer all his possessions for the
opportunity of marrying a member of a psychically
well-developed family. 47
The marriage between the offspring of inferior
stock and that of superior stock, such as the
marriage between a scholar and the daughter of an
am-haarez, or between an am-haarez and the
daughter of a scholar, was considered extremely
undesirable, and was condemned very strongly. 48
Moreover, no Rabbi or Talmid Chacham was allowed
to take part in the celebration of such a non-eugenic
union. 49
An historical case is cited by Rabbi Eliezer to
prove that one should always select his soul-mate
from amongst the spiritually better-developed
families. Moses married a daughter of Jethro, a
heathen priest, and the result was that one of his
grandsons, Jonathan, became an idolatrous priest.
Aaron, on the other hand, married the daughter of
Abinadab, and history records the name of his
grandson Phinehas as the hero who defended the
honor and purity of Israel. 50
Parents living normal and righteous lives are not
only a blessing to themselves, but also to their chil-
dren and children’s children, until the end of all
generations; while parents living abnormal and
* 7 Pesachim 49b.
48 Kiddushin 49b ; cf . also Pesachim 49b.
* 9 Pesachim 49b.
8 °B. B. 109b.
Jewish Eugenics 17
immoral lives bring ruin and calamity not only on
themselves, but also on their children and children’s
children, to the end of all generations. 51
IX. Heredity
A parallel to the “rough eugenic ideal” of
marrying “health, wealth and wisdom” 52 is found in
the words of Rabbi Akiba, who claims that “a
father bequeaths to his child beauty, health, wealth,
wisdom and longevity.” 58 Similarly, ugliness,
sickness, poverty, stupidity and the tendency to
premature death, are transmitted from father to
offspring. 54 Hence we are told that when Moses desired
to know why some of the righteous suffer in health
and material prosperity, while others prosper and
reap success; and again, why some of the wicked
suffer, while others enjoy success and material
well-being; God explained that the righteous and
wicked who thrive and flourish, are usually the
descendants of righteous parents, while those who
suffer and fail materially are the descendants of
wicked parents. 55
X. Priceless Heritage
Thus the Rabbis recognized the fact that both
physical and psychical qualities were inherited, and
endeavored by direct precept and law, as well as by
61 Yoma 87a.
62 Heredity in Relation to Eugenics, p. 8.
“Eduyoth 2, 9.
“Yer. Kiddushin 1, 7.
86 Berachoth 7a.
18 Jewish Eugenics
indirect advice and admonition, to preserve and
improve the inborn, wholesome qualities of the
Jewish race. It is true that they were willing to
concede that “a pure-bred individual may be pro-
duced by a hybrid mated with a pure bred,” for
they found examples of that nature in Ruth the
Moabitess, Naamah the Ammonitess, 58 Hezekiah
and Mordecai. 57 As a general eugenic rule, how-
ever, they maintained that one cannot produce “a
clean thing out of an unclean,” and discouraged any
kind of intermarriage even with proselytes. 58 Their
ideal was a race healthy in body and in spirit, pure
and undefiled, devoid of any admixture of inferior
human protoplasm. 69
Such an ideal, though apparently narrow and
chauvinistic, has its eugenic value, as the following
suggestive quotation from a well-known eugenist
clearly indicates. “Families in which good and noble
qualities of mind and body have become hereditary,
form a natural aristocracy ; and if such families take
pride in recording their pedigrees, marry among
themselves, and establish a predominant fertility,
they can assure success and position to the majority
of their descendants in any political future. They
can become the guardians and trustees of a sound
inborn heritage, which, incorruptible and undefiled,
they can preserve in purity and vigor throughout
whatever period of ignorance and decay may be in
“Yebamoth 63a.
“Bamidbar Rabbah, Chukath ch. 19.
“Pesachim 112b, Kiddushin 70b.
“Yer. Kilayim ch. 1.
Jewish Eugenics 19
store for the nation at large. Neglect to hand on
undimmed the priceless germinal qualities which
such families possess, can be regarded only as a
betrayal of a sacred trust.” 90
60 See Social Direction of Human Evolution, p. 238.
The Defective in Jewish
Law and Literature
Rabbi Joel Blau
CONTENTS
Introduction 1
General Considerations 3
Legal Status 9
(a) Chazakah 9
(b) Zechiyah 10
(c) Inheritance 10
(d) Sales .12
(e) Honor 13
(f) General Legal Standing 13
(g) Status of the Blind 14
(h) Marriage and Divorce 14
Religious Status 17
The Aggadah 20
THE DEFECTIVE IN JEWISH LAW
AND LITERATURE
INTRODUCTION
There are two typical attitudes toward the
phenomena of existence. One may simply take these
phenomena for granted, unquestioningly, uncom-
plainingly. Whatever their cause and origin, they are
here and must be dealt with somehow. They must be
adjusted to men and men must be adjusted to them,
according to the demands and limitations of the
individual and of society. Or again, one may refuse
to take them for granted. One may go behind these
phenomena and inquire into their cause. To him who
adopts the latter attitude, practical means of adjust-
ment are not satisfactory, his concern being to find
those higher, ideal adjustments whereby life as a
whole, with its light and shadow, may be shown to
conform to the laws of mind and morals, of reason-
ableness and righteousness.
The difference between these two attitudes is
particularly apparent in the case of such phenomena
as introduce jarring discord into human life. Facing
23
24 The Defective in Jewish Law and Literature
such discord, the problem of the human mind is : How
is it to be brought into harmony with God’s creative
plan? with God’s attributes of justice and mercy?
Now, one may simply ignore this problem, saying that
this is one of the “hidden things that belong to the
Eternal,” and then proceed to deal with the “revealed
things that belong to us.” Causes are hidden, but
effects are revealed; and one may be content to deal
with the human effects rather than with the divine
causes of existing ills. Or again, one may boldly
venture into the region of causality and, troubled by
the wailing sounds and festering sights of human
suffering, one may ask the age-long question of a Job
or a Jeremiah, How can God afflict the sons of men so
grievously ?
In a word, the one attitude deals with a scheme of
human government, the other, with a scheme of divine
government.
These attitudes, as here set forth, are represented
in Jewish Literature by the Halacha and the Aggadah,
respectively. In this broad view, of course, the terms
Halacha and Aggadah are not to be taken as referring
merely to the Talmud and Midrashim but also to the
Bible, for the Bible, too, has its Halachistic, or
legalistic contents, as well as its Aggadistic, or non-
legalistic portions. Whether in the Bible or in the
rabbinic interpretations, this characteristic distinction
between Halacha and Aggadah can be traced through-
out. The Halacha does not concern itself with the
causes of phenomena, only with their effects. It does
not seek for an ideal world-view; it views the world
as it is and deals with it in a practical way. The
The Defective in Jewish Law and Literature 25
Aggadah, on the contrary, searches for the causes of
things — causes that lie concealed in the lap of God —
whose workings, though seemingly evil, are yet per-
ceived to accord with His eternal goodness. Since
now the distressing phenomenon presented by the
existence of mentally and physically defective men
and women is one of the discordant elements of human
life, we should expect to find with regard to it a
marked difference between the attitude of the Halacha
and that of the Aggadah. The Halacha accepts the
phenomenon of Subnormality and tries to bring it into
right relations with man; the Aggadah inquires into
the why and wherefore of Subnormality and en-
deavors to bring it into right relations with God.
General Considerations
The Halacha deals chiefly with the following types
of Subnormality:
1. Cheresh — deaf-mute or deaf ;
2. litem — mute ;
3. Shoteh — feeble-minded, monomaniac, or
insane ;
4. Nichpeh — epileptic ;
5. Suma — blind ;
6. Tumtum ve-Androgunos — Neuter and Her-
maphrodite ;
7. Saris ve-Aylonith — the sterile in both male
and female.
It is to be noted that Deafmutism and Insanity are
most frequently met with in the Halacha, much more
frequently than all other types of subnormality. We
26 The Defective in Jewish Law and Literature
are nevertheless not justified in inferring from this
circumstance that these two afflictions were the most
prevalent ones among Jews ; rather is the explanation
to be found in the fact that these are the farthest
departures from the normal state, and hence called for
numerous special measures.
Further be it noted that the Talmud as well as the
Codes always mention the deafmute and the insane
together with the minor as belonging to the selfsame
class of the legally incompetent and mentally irrespon-
sible. Deafmutism according to the Talmud consti-
tutes a mental defect no less than a physical affliction.
The rabbinic dictum is: “Cheresh lav bar deah hu” 1
But the disqualifying element in deafmutism is rather
deafness than dumbness. Maimonides, in his Com-
mentary on Terumoth, declares that the cause of
dumbness lies in congenital deafness. 2 Hence the
tendency in the Codes — specifically in the Yad
Hachazakah and the Shulchan Aruch — is, on the
whole, to include the deaf who speak with the deaf
and dumb in the same legal provisions, though it is
conceded that the former, unlike the latter, may be of
sound minds. 3 There is, however, scarcely any doubt
about the mental competency of the Mem — the dumb
who can hear — though, by reason of his affliction, he
is to some extent legally disqualified; for in the case
of the hearing mute the ear is an ingress to the
iChag. 2b ; Git. 23a.
2 Terumoth I, 2. The statement, in the same passage, that
the “Mem” was included by the Rabbis in the definition of
“cheresh” is unintelligible and does not tally with the known
Rabbinic pronouncements on the subject.
*Maim. Yad, Eduth IX, 11.
The Defective in Jewish Law and Literature 27
understanding. In the Talmud, 4 the verse : “That they
may hear and that they may learn” 5 is applied also to
the hearing mute, who can learn because they can hear ;
and in corroboration of this, a touching story is told of
two mutes who listened diligently to the teachings of
R. Yehudah Ha-Nassi, their heads nodding and their
lips moving with the vain effort to speak. Rabbi took
pity on them and prayed for them, whereupon they
obtained the power of speech and were found to be
well-versed in all the disciplines of the Law.
As we follow the evolution of the Talmudical law
concerning the divers classes of mutes through the
various codes, the matter becomes more and more
involved; but the impression gained throughout is,
that the original law is gradually applied with increas-
ing rigor even to such mutes as cannot be classed
among the mentally incompetent. Originally, the in-
tention of the Rabbis seems to have been to disqualify
the hearing-mute and the speaking-deaf solely on
technical grounds in cases where the faculties of
speech and audition are indispensable requirements.
For instance, the deaf though speaking, and the mute
though hearing, cannot serve as witnesses, since they
cannot comply with the requirements of “hearing” and
“telling” adumbrated in Lev. V, l. 8 But in other
respects, where the question of mental soundness is not
at issue, there was no intention to disqualify these two
classes of mutes. In fact, the Mishnah 7 lays down the
*Chag. 8a.
B Deut. xxxi, 12.
«Git. 71a.
7 Terumoth I, 2.
28 The Defective in Jewish Law and Literature
principle that wherever the word “Cheresh” occurs,
only the deaf-mute are meant thereby; and the
Gemarah, 8 in quoting this Mishnaic principle, cites in
support thereof, a Baraitha which expressly declares
that both the speaking-deaf and the hearing-mute are
to be dealt with as mentally competent, though this
same Baraitha, harking back to the Psalm- verse : “And
I am like a “Cheresh” that heareth not and like an
“Illem” that openeth not his mouth,” 8 holds that the
term Cheresh refers both to deafmute and speaking-
deaf. It is plain, therefore, that while as a matter of
terminology the speaking-deaf are classed with deaf-
mute, as a matter of law they are classed with the
hearing-mute. Nevertheless, this principle is not
sustained in the Codes. For instance, in the matter of
the validity of sales negotiated by the various kinds of
mutes, R. Jacob b. Asher in his Tur, 10 basing himself
probably on the Mishnah in Gittin VII, l, 11 classes the
hearing-mute with the deafmute, and the speaking-
deaf with the normal; while Maimonides 12 and R. J.
Caro 13 class, conversely, the speaking-deaf with the
deaf-mute and the hearing-mute with the normal, both
thus reversing the Mishnaic definition of Cheresh.
Indeed, one is led to conclude, that Maimonides con-
8 Chag. 2b.
®Ps. xxxviii 14.
10 Choshen Mishpat Chap. 235.
11 Wrongly, I believe, for the discrimination shown there
against the mute refers only to “nishtatek” one who became
dumb through sudden illness, in which case the question of
sanity might be mooted, but not to “illem,” who is considered
a mentally sane being.
“Maim. Yad, Mechirah XXIX, 13.
13 Chosh. Mishp. Chap. 235.
The Defective in Jewish Law and Literature 29
sidered the deduction from the above Psalm-verse
conclusive, thus raising mere terminology to the im-
portance of law. 14 The net result of all this is, that
the attitude of the law becomes more rigorous towards
all classes of the mute and the deaf, their sanity being
more or less challenged.
But of course, the mentality of the deaf or mute,
even of the deafmute, is not placed by the Rabbis on
the same low level as that of the insane. In many
ways the deafmute were regarded legally competent.
The Rabbis, then, recognised degrees of mental in-
capacity. However, as to the mental alienation
proper, they made no rigorous distinction between the
feeble-minded and the insane. Maimonides has a
distinct reference to monomania in a ruling to the
effect that the monomaniac is incompetent even in
matters concerning which he is rational. 15 We do how-
ever find that the Rabbis attempted to define mental
alienation by distinct criteria. These Rabbinic criteria
are as follows: 16 “He who takes a solitary stroll by
night (exposing himself to ghosts) ; he who spends the
night in the cemetery; he who wildly tears his gar-
ments ; or he who destroys everything given him.” No
trouble need be taken to compare these criteria with
14 Cf. his Commentary on Terumoth I, 2 — where he says:
“In our language, Cheresh means one who does not hear,”
which suggests that he was influenced by considerations of
language, of terminology and definition. Note, however, Yad,
Ishuth II, 26, where Maimonides uses the term “Mem” for
the deafmute; and where, moreover, he says that the
speaking-deaf and the hearing-mute are to be regarded as
normal human beings.
16 Maim. Yad, Mechirah IX, 9.
“Chag. 3b.
30 The Defective in Jewish Law and Literature
the strict medical tests of our own time ; nor need the
rabbinic test of insanity be taken too literally, the
Rabbis having had in mind not so much specific criteria
as types of action evidencing eccentricity of some
sort. 17 The underlying principle, then, is eccentricity,
which fully accords with the modern idea of mental
aberration.
Epileptics are characterised as: “Ittim shafui, ittim
shoteh.” They are classed with the insane during the
fit ; with the normal, during their lucid intervals. 18
Most tersely is the incompetency of these defectives,
both deafmute and insane, expressed by the Mishnah
in the following statement: “Yesh lahem ma’asseh
ve-en lahem machashavah” — they are capable of
action but not of thought. 19 In the Gemarah, however,
not even this concession is made to them, R. Amai
saying: 20 “Rov maassehem mekulkalim” — “their ac-
tions are for the most part inefficient.”
Leaving out the blind, as requiring little comment,
let these general considerations be concluded with a
word about the sex-freaks. The rabbis regarded both
Tumtum and Androgunos, but especially the latter, as
“Biryah bifene ‘atzmah” as a distinct creature. 31
Tumtum is a kind of neuter in whom sex has not
declared itself, but may at any time do so either in the
“V. Kesef Mishneh on Yad, Eduth IX, 9: “Ledugma
naktinhu.”
18 Rosh-Hash. 28a, where the term “chalim” is used for
“shafui” — lucid, sane; Maim. Yad, Mechirah XXIX, 5.
“Machshirin III, 8; VI, 1; Taharoth VIII, 6.
2<>Chulin 26a.
“Yevamoth 83a; 99b; Bikkurim IV, 5.
The Defective in Jewish Law and Literature 31
direction of masculinity or femininity; while Andro-
gunos, or hermaphrodite, is a bisexual person,
possessing for ever the characteristics of both male
and female. 21 The Rabbis, commenting on the verse :
“male and female created he them,” maintain that the
first human creature was an Androgunos. 2 * This is
of some interest in view of the problem in biological
evolution, whether the hermaphrodite or the dioecious
state is the primitive one. 24 Finally, the sterile of both
sexes are recognised by the absence of signs of puberty
and, in addition, by a masculine voice in females and
feminine voice in males. 25
And now we may proceed to set forth in detail the
status of the defective, both legal and religious. By
legal status is meant their standing in secular matters,
including marriage and divorce; by religious status,
the extent of their participation in the religious life of
the Jew.
Legal Status
(a) Chazakah
Chazakah is the right of ownership by virtue of
undisputed tenure for a definite length of time. The
“Yevamoth 83b; Maim. Yad, Ishuth II, 24-25.
23 A variant of this view is that Adam was a “du-partzufin”
a kind of twin-creature, male and female grown together
back to back, which was afterwards separated by the well-
known operation; but the authorship of these two views is
confused in the respective passages. V. Bereshith R. VIII;
Vayikra R. XIV; Eruvin 18a; Berachoth 61a.
24 Balfour, Comp. Embryol. Introd. p. 11.
“Yevamoth 80b ; Maim. Yad, Ishuth II, 6.
32 The Defective in Jewish Law and Literature
deafmute and the insane are not allowed such pre-
sumption of ownership by actual possession. 28
(b) Zechiyah — Gifts
The act of the acceptance of a gift constitutes a
legal title thereto. This is called Zechiyah. In this
sense, a man may also act as a proxy and receive
property for others, the legal title thereto being estab-
lished in their favor the moment the property is trans-
ferred to him. Here a distinction is made between the
insane and the deafmute. The insane can neither make
nor receive gifts, nor yet can they accept property for
others; whereas the deafmute can accept gifts for
themselves, though they cannot make gifts nor receive
them for others. A normal person, however, may
receive gifts for insane. 27
(c) Inheritance
In seeming contradiction to the laws of Zechiyah,
are the laws of inheritance. Both insane and deafmute
may make and receive bequests. For the principle
here involved is entirely different from that under-
lying transfer of property. The right of inheritance
does not involve a conscious transfer of property
requiring legally competent agents; it is an inherent
right, 28 working quite automatically; an inheritance,
according to rabbinic terminology, “falls” to the heir.
Hence the question of sanity is beside the point. The
26Maim. Yad, To’en XIII, 2; Chosh. Mishp. 149, 18— based
on Mishnah B. Bathra III, 3.
27 Maim. Yad, Zechiyah IV, 6—7; Chosh. Mishp. 243, 14-16,
based on Gittin 64b. See also Yad, Mechirah XXIX 1-4.
28 Mishnah B. Bathra 126a; Maim. Yad., Nachaloth VI, 1.
The Defective in Jewish Law and Literature 33
only provision of the law is that in the case of an
insane or deafmute heir, the court is to appoint a
trustee or guardian to manage the estate. 29 All this,
however, applies only to natural heirs, but not to the
heirship of husbands, if either party to the marriage
is deafmute. In such a case, if the wife is a deafmute,
the husband cannot inherit her property, though he be
normal ; but if the wife is normal and the husband is a
deafmute, he can inherit her property. 80 The reason
for this discrimination lies in the fact that the right of
the husband to inherit his wife’s property is not an
inherent right as in the case of blood-relations. The
latter inherit by virtue of Pentateuchal law, while
husbands are entitled to the estate of their wives only
by virtue of a Rabbinic ordinance. 31 The heirship of a
husband, then, is in the nature of a deed implied in the
marriage act. 32 Hence, in the case of deafmutes, there
applies to the heirship of husbands not the law of
inheritance but the law of Zechiya. Therefore, if the
wife is deafmute, the husband cannot inherit her
property, though he be normal, since the deafmute
cannot effect a transfer of property ; but if the wife is
normal, he can inherit her estate, though he be deaf-
mute, since she, as responsible agent, can transfer her
property ; and he as deafmute can, in keeping with the
2 »Kethuboth 48a; Maim. Yad, Nachaloth X, 5 and 7; ibid.,
Mechirah XXIX, 3; Chosh. Mishp. 290, 1-27.
aoMaim. Yad, Ishuth XXII, 4; ibid., Nachaloth I, 9.
8a Kethuboth 84a; Maim. Yad, Nachaloth I, 8. Note also
that the marriage of deafmutes itself is valid only by Rabbinic
ordinance, which, however, cannot explain the fact that the
deafmute husband of a normal wife is her heir.
32 Note the familiar Rabbinic principles: “Kol dimekadesh
ada’ata dirabanan mekadesh.”
34 The Defective in Jewish Law and Literature
law of Zechiyah above set forth, receive property.
On these same grounds, the husband cannot be heir to
his wife’s estate, if either party to the marriage be
insane, since the insane can neither make nor receive
gifts — apart from the fact that the marriage of the
insane has barely any standing in the eyes of the law. 83
(d) Sales
The difference between the insane and the deaf-
mute is most strikingly shown in the matter of the
validity of sales. Sales or purchases by the insane,
whether in chattel or real estate, are invalid ; while the
commercial transactions of the deafmute and the
speaking-deaf are valid in respect to movable goods
but not in real estate. 34 The deafmute, we are told,
buy and sell “birefnizah” by sign-language. 35 They
should be, however, thoroughly examined as to
whether they understand the nature of the deal, 38
which again shows, that the rationality of the deaf and
deafmute was questioned in every way. Indeed, this
provision of the law is explained as a merciful con-
cession, to enable the deafmute to procure a liveli-
hood. 37 In this connection, the case of epileptics, too,
receives consideration. The point to be ascertained in
83 Yevamoth 112b, 113a; Maim. Yad, Nachaloth I, 10.
s*Gittin 59a, 71a; Maim. Yad, Mechirah XXIX, 1-2; Tur
Chosh. Mishp. 235, 17 and corresp. Shulchan-Aruch.
36 In the Mishnah Gittin 59a, a distinction is made between
“remizah” — gestures of the hand — and “kefitzah” — movements
of the lips; and the former is held more reliable than the
latter.
86 Gittin 67b, 71a; Maim. Yad, ibid., Examination, however,
was necessary in the case of the “Mem” too.
“Gittin 59a; Maim. Yad, Mechirah XXIX, 1.
The Defective in Jewish Law and Literature 35
reference to their transactions is, whether these took
place in their lucid moments or during the epileptic
seizure. 88
(e) Honor
From a human standpoint the question is most in-
teresting whether these defectives have any sense of
personal honor and are, hence, entitled to damages
for insult or defamation of character. Here again,
the deafmute are entitled to damages, while the insane
are not. 89
(f) General Legal Standing
The general standing of these defectives before the
law, in other respects than above specified, is prac-
tically nil. Not being considered responsible agents,
they are not liable to damages for assault upon others,
while others are liable to such for assault upon them. 40
Neither their claims on others, nor the claims of others
on them, are heard ; they are not sworn nor is an oath
administered to others on their account. 41 Thus, they
are practically without redress in money matters. Nor
are they accepted as witnesses; be it noted, however,
that in the case of the deafmute, this is more on
account of technical disability than of mental incom-
petency; hence, even the “Mem” who is otherwise
considered mentally sound, is disqualified as a witness,
since he cannot give testimony by word of mouth, as
3*Rosh-Hash. 28a; Maim. Yad, ibid., 5.
39 B. Kama 86b; Maim. Yad, Chovel III, 4; Chosh. Mishp.
300, 37.
*«B. Kama 87a; Maim. Yad, ibid, IV, 20.
“Shevuoth 38b; Maim. Yad, To’en V, 9 and 12.
36 The Defective in Jewish Law and Literature
has already been set forth above. 42 Nor yet can they
act as agents for others; but if they so act, the risk
belongs not to him who employs them as intermediaries
but to him who accepts them as such and entrusts aught
to them. 48
(g) Status of the Blind
In contradistinction to these defectives, the Blind
are given full legal rights, except that they cannot,
on obvious grounds, serve as witnesses or as judges;
but a one-eyed man may function as witness though
not as judge. 44 Moreover, the blind cannot act as
bringers of a Get from foreign parts, since they
cannot comply with the technical requirement of de-
claring : “Befanay nichtav” — It was written and signed
“before” me. 48
(h) Marriage and Divorce
The principle underlying marriage and divorce
between deafmutes or between deafmutes and normal
persons is, that such marriages are valid only by
Rabbinical ordinance and not by Pentateuchal law. 46
Hence the wife in the case is entitled to neither keep
nor Kethubah} 1 Both Marriage and Divorce, whether
“General Considerations.
* 8 B. Bathra 87b ; Maim. Yad, Sheluchin II, 2.
“Niddah 50b; Maim. Yad, Eduth IX, 12.
48 Gittin 23a, where the general disqualification by the
Mishnah is modified by the Gemara to apply only to divorce-
bills brought from “Chutz-laaretz.” Maim. Yad, Gerushin
VII, 19.
“Yevamoth 112b; Maim. Yad, Ishuth IV, 9.
47 Yevamoth 113a; Maim, ibid., XI, 4. This seemingly cruel
provision is explained as facilitating the marriage of a deaf-
mute woman.
The Defective in Jewish Law and Literature 37
she or he be deafmute, take place by Remizah — sign-
language. 48 But if a deafmute man can write, he must
give a Get. 49 Deafmutes, however, must be examined
as to whether they understand the nature of the act. 50
The Rabbis, however, have made no provision for
the marriage of the feeble-minded and insane. 61 “Lo
tikkenu lahen rabbanan nissuin.”
As to the special divorce regulations applying to the
deafmute and the mentally defective, the following is
to be noted : If a woman who was normal at the time of
her marriage becomes deafmute afterwards, the hus-
band has the alternative of either retaining or divorcing
her; but if a man who was normal at the time of his
marriage becomes deafmute afterwards, he cannot
divorce her. 62 But if a woman who was sane at the
time of her marriage becomes afterwards irrational,
the husband cannot divorce her. In strict legality, he
might divorce her as long as she has sense enough to
take care of her Get; but the Rabbis have mercifully
provided that he should never put her away, lest she be
at the mercy of licentious men. 53 He may, however,
marry another woman without being guilty of
bigamy. 54
The laws of Yibbum and Chalitza operate in the
48 Mishna Yevamoth 112a; Gittin 59a; Maim. Yad, Gerushin
88, 17.
“Gittin 71a.
°°Ibid.
61 Yevamoth 112a: “En adam dar im nachash bichefifah
achath — no man would take up his abode with a serpent.”
Maim. Yad, Ishuth IV, 9.
“Yevamoth 112b; Maim. Yad, Gerushin II, 17.
“Yevamoth 112b, 113b; Maim, ibid., X, 23.
“Even-Haezer 119, 6.
38 The Defective in Jewish Law and Literature
case of these defectives in the following manner : Both
deafmute and insane, male or female, can be parties
to a levirate marriage, but not to the act of Chalitza.â„¢
Hence the curious situation arises that a person who
cannot contract an ordinary marriage, because of legal
incompetency, can contract a perfectly valid levirate
marriage, for the reason that the validity of the
levirate marriage is rooted in the previous marriage
of the sane brother. From this follows that the wife
of an insane or feeble-minded person is subject to
neither Chalitza nor Yibbum, 66 since her marriage has
no legal standing. The wife of a deafmute, however,
is regarded as being in the same case with all other
women, since her marriage has some legal standing,
and thus she can be a party either to Yibbum or to
Chalitza. 67 How far the levirate marriage by defec-
tives is valid, is shown by the fact that a deafmute
cannot, after contracting a levirate marriage, divorce
the wife so wedded, since the divorce by a deafmute
man is not potent enough to undo a perfectly valid
marriage. 88 If, however, he is normal and his levirate
wife is deafmute, he can divorce her. 69
The salient features of the law regulating the
marriage of the sexually abnormal are as follows : In
the case of sterility, the marriage is valid if contracted
with the full knowledge of the defect; but if con-
tracted in ignorance concerning the defect, the mar-
“Yevamoth 112b; Maim. Yad, Yibbum VI, 3 and 6; Even-
Haezer 172, 11 and 12.
56 Yevamoth 96b; Maim, ibid., 8; Even-Haezer, ibid., 16.
B7 Maim. ibid., 7. See comment by Maggid M.
88 Yevamoth 112b; Maim, ibid., 3.
69 Maim. ibid., 6.
The Defective in Jewish Law and Literature 39
riage is void. 60 A sterile man or woman is not subject
to Yibbum and Chalitza. 91 A Tumtum may marry and
be married, but such a marriage is of dubious
validity ;” while an Androgunos can wed but cannot
be wedded. 88 Neither is an Androgunos qualified for
Yibbum and Chalitza, while a Tumtum performs the
act of Chalitza but cannot contract a levirate
marriage. 94
Religious Status
The deafmute and the insane have no place what-
soever in the religious life. They stand without the
pale of Judaism. “They are free from the duties,
responsibilities and penalties” prescribed by our re-
ligion.* 5 Nor are they granted the privileges of
religion. They cannot officiate in any religious
capacity: “enam motziin eth harabbim yede cho-
votham.”** They do not blow the Shofar, 87 nor do
they lay an Eruv-te chumin.â„¢ A slight exception is
found in the case of Shechita, which is not to be
performed by them tt lechatechila >> but which is none
the less kosher if performed under the supervision of
“Kethuboth 100b, 102b; cf. ibid 72b and Yevamoth 2b;
Maim. Yad, Ishuth XXIII, 1-2; Even-Haezer 44, 4.
“Yevamoth 24a, 79b; Maim. Yad, Yibbum VI, 1 and 8.
“Bechoroth 42b; Yevamoth 72a; Maim. Yad, Ishuth IV,
11; Even-Haezer 44, 5.
“Yevamoth 81a; Maim. Yad, Issure-Biah I, 15.
“Maim. Yad, Yibbum, VI, 2, 4, 8.
“Rashi Chag. 3b.
««Rosh-Hash. 29a.
“Ibid.
“Eruvin 31b.
40 The Defective in Jewish Law and Literature
competent persons. This, however, is but a post-
f actum concession: “bedi-avad.”**
The religious status of the blind is a matter of some
controversy in the Talmud, the opinion of R. Yehudah
being oft quoted to the effect that the blind are free
from religious duties; 70 but the final decision, regis-
tered in the Codes, is that the blind are disqualified
only to the extent of their inability to see. Hence a
blind man may officiate as Chazan, but he may not read
from the scrolls ; 71 because prayers may be recited by
heart, while the Law must be read: “Devarim
shebichtav i attah reshai leomeram ‘al peh” 12 He
must even observe Mitzvath Tzitzith, despite the com-
mand, “ye shall see them,” 78 because others can see
the fringes. 7 *
In connection with the religious disabilities of the
insane and deafmute it is worthy of note that, accord-
ing to one authority, 75 a father who has begotten an
insane or deafmute child has thereby fulfilled Mitzvath
Piryah-Verivyah. One might suppose that the bringing
into the world of a religiously disqualified child does
not satisfy the requirements of this religious law. In
that well-known Midrash which tells how God con-
sulted the angels as to whether He should create man,
the angelic host ask the Creator: “What are the
6 »Chulin 2a.
â„¢B. Kama 87a; Kiddushin 31a.
“Megillah 24a; Maim. Yad, Tefillah VIII, 12; Orach
Chayyim 53, 14.
72 Gittin 60b; Orach Chayyim, ibid.
“Num. xv, 39.
T *Shabbath 27b; Maim. Yad, Tzitzith III, 7; Orach Chayyim
17, L
“Even-Haezer 1, 6: gloss by Isserles in the name of R.
The Defective in Jewish Law and Literature 41
potentialities of this odd creature ?” And God
answers, “Tzadikkim — righteous men — will descend
from him.” 78 That is to say, the mission of humanity
is spiritual, and it is only in the light of the spiritual
destiny of mankind that the perpetuation of the race
is exalted to a high plane. The Midrash even adds
slyly that God revealed to the angels but half the
truth, for had He revealed the other half, namely that
unrighteous men too would descend from Adam, the
Midath Haddin — the Attribute of Justice — would
never have brooked the creation of man. Well, this is
Aggadah. But the Halacha on the one hand dis-
qualifies the child, and on the other hand declares
itself satisfied with the father. Here one may already
perceive the difference between the attitude of
Halachah and Aggadah, of which more will be said
presently.
Before passing on to that phase of the subject, just
a few words are in place about the disabilities of
physically defective priests. These were put to menial
work about the Temple, such as cleaning the kindling
wood from worms, for which purpose a special cell
was set aside called “lishchath ha’etzim.” 17 When we
read the long list of the physical disqualifications in
Lev. xxi, we are strangely impressed with the fact
that the least departure from bodily perfection unfitted
a man for service at God’s altar. The spiritual ministry
of the priest was hedged in by exacting physical re-
quirements. No less curious is the fact that the
Solomon b. Aderet (end of 13th cent).
â„¢Bereshith R. VIII.
“Midoth II, 5.
42 The Defective in Jewish Law and Literature
Hebrew language, though impoverished in many
important respects, has preserved in this list as well
as in both Tochechoth 78 so many words that describe
unsightly malformations and loathsome diseases. We
lack classic Hebrew terms for many of the beautiful
sights and sounds of this world — for colors, flowers,
trees, birds — but we do not seem to be wanting in
terms that bring before us the seamy side of life, that
echo the groans of the sufferers, that reflect the gloom
of darkened lives. One is reminded of those old-
fashioned books on theology that contained nine
chapters on hell and only one chapter on heaven.
Uppermost, it seems, in the human mind is the sinister
aspect, the sitra achara, of existence. That aspect we
are apt to exaggerate beyond all proportion; and,
therefore, it becomes the business of the spiritually-
minded thinker to reduce our morbid imaginings to
their true measure, to turn our face toward the light,
to show how in the divine scheme of things, light and
shadow sing the same song of everlasting justice and
mercy.
The Aggadah
That song was caught and set to human words by
the Aggadah.
While the Halacha coolheadedly accepted conditions,
and dealt in a practical way with the grim realities of
Subnormality, the Aggadah asked searching questions
and dealt with the dim idealities of Subnormality.
Now behind every question that the human intellect
“Lev. xxvi, 16; Deut. xxviii, 20-22, 27-29, 34, 35.
The Defective in Jewish Law and Literature 43
ever asked there was an emotional crisis, a shock.
And it behooves us to find out the nature of the
shock that led the Aggadists to inquire into the causes
of Subnormality, always bearing in mind that while
the Halachah confines itself to adjusting the physical
order unto itself, the Aggadah tries to adjust the
physical order to a higher spiritual order.
What, then, was the nature of this shock? On the
physical side, it is not to be supposed that the sight
of bodily imperfection left the Rabbis of the Aggadah
altogether untouched. The Greeks had no monopoly
in the high regard for the body beautiful. The Jew,
too, appreciated bodily perfection. It would take one
too far afield to enumerate all the passages in Bible and
Talmud that show admiration for well-favored men
and women. One example shall suffice. The Rabbis
say that God takes pride in men of tall stature, 79 basing
their statement on the verse: “And I have destroyed
the Amorites before them, whose height was like the
height of cedars and he was strong as the oaks.” 80
The Rabbis felt that this verse, though referring to
the destruction of those remarkable specimens of
stalwart humanity, still reflected the divine pride, as
it were, in the tall and vigorous human frame.
Nevertheless, while the Jew appreciates physical
wholeness, the Jewish Genius is not primarily
esthetical; it is essentially ethical. Hence we are not
to expect that the shock which the Aggadists
experienced when facing the phenomenon of Sub-
â„¢Bechoroth 45b.
80 Amos ii, 9.
44 The Defective in Jewish Law and Literature
normality was an esthetic one, a rude jarring of their
esthetic sensibilities; nor that the causes they sought
to learn were of a physical nature. In conformity with
the constitution of the Jewish Genius, the shock they
experienced was an ethical shock, a painful upheaval
of their moral being ; and the causes they searched for,
in order to regain their own spiritual equilibrium, were
accordingly of an ethical nature. Facing Subnormality,
the Aggadists asked: How can such things be in a
world presided over by a righteous God?
In proof of this, it is to be noted that the general
Rabbinic theory of human suffering is that it is caused
by moral turpitude. “En yissurim beli avon” — no Sin,
no Suffering. 81 In regard to Subnormality, however,
the Rabbis are still more specific, assigning certain
defects to certain definite immoral acts. Lameness,
mutism, blindness and deafmutism in children are
ascribed to various kinds of incontinence and un-
chastity practised by parents during co-habitation.”
A judge who takes bribe will be stricken with blind-
ness; 88 this view is of course based on the literal
interpretation of the verse : “For the gift blindeth the
wise.” 84 Lastly, the Rabbis tell us that malingerers,
who sham blindness or other defects in order to
excite sympathy and receive undeserved bounty, will
yet be stricken before they die with the very affliction
they feign. 86
81 Shabbath 55a. See also Berachoth 5a: “im roeh addm,
yissurim bairn ‘alav yefashpesh betna’assav;” and Gittin 70a:
Sheloshah devarim makchishin kocho shel adam: pachad,
derech, avon.”
82 Nedarim 20a.
ssPeah 8, 9; cf. Kethuboth 105a.
8 *Deut. xvi, 19.
86 Peah, ibid., Kethuboth 68a.
The Defective in Jewish Law and Literature 45
It is thus that the Rabbis tried to trace the moral
causes of Subnormality. It is thus that they en-
deavored to fit the latter into the divine world-scheme.
The defective is more or less guilty of sin, or at bes t
was conceived in the sin of others. It is perhaps for
this reason, that the Levitical laws were so scrupulous
with regard to the physical wholesomeness of the
priesthood. A seeming contradiction to this theory as
to the moral causes of Subnormality is to be found in
Ex. iv, 11. In this verse God answers Moses* com-
plaint about his slight impediment: “Who hath made
man’s mouth, or who maketh the dumb, or the deaf,
or the seeing, or the blind? Have not I the Lord?”
According to the literal meaning, this verse refers to
the innocent Moses. The philosophy reflected in this
verse is that God in His inscrutable wisdom grants or
withholds the faculties of the body regardless of the
merit of the individual. This, then, would tend to
upset the Rabbinic theory. But here again the Rabbis
are true to themselves and exhibit their consistency to
a striking degree. For this same verse, as explained
by the Rabbis, assumes a different meaning, one that
tends to support the Rabbinic view of subnormality.
They say 86 that when Pharaoh wanted to have Moses
put to death for killing the Egyptian, all his wise men
became incapacitated : some of them went blind, some
dumb, some deaf, and some lame. When Pharaoh
issued the command to seize Moses, the blind could
not see, the dumb could not speak, the deaf could not
hear, and the lame could not run. Thus Moses
“Shir-Hashirim R. VII.
46 The Defective in Jewish Law and Literature
escaped. Now, say the Rabbis, the verse in question
refers to that incident. In other words, it refers not
to the innocent Moses but to the guilty Egyptians.
Facing the broken tabernacle of the body, the Rabbis
recognised in the battered ruins the punishing hand of
God. Therefore did the Rabbis prescribe special forms
of benediction for those who happen to sight a
defective or a physical freak. If the defect is con-
genital, the beholder should say : “Blessed art thou, etc.,
who f ashionest thy creatures in strange ways ;” but if
accidental, he should say: “Blessed be the righteous
judge.” 87 Nevertheless the Rabbis readily acknowl-
edged that the light of God may shine forth brightly
out of some of these broken shrines. Mention was
already made of the story of the two dumb scholars
who absorbed R. Jehudah’s discourses. A further
example in point is the familiar figure of the blind
R. Shesheth whose extraordinary erudition is
emphasized, 88 and whose acumen forms the subject of
many a Rabbinical anecdote. 89 Lastly, the Rabbis say
that Mephibosheth, son of Saul, of whom the Bible
says that he was lame on both his legs, 80 was the
teacher of David, by whom he was consulted on all
occasions. 91
If after what has been said, further corroboration
be needed of the Aggadistic attitude towards Sub-
normality, as here set forth, another Rabbinic story
87 Berachoth 58b.
88 Shevuoth 41b.
8 »Berachoth 58a.
90 II Sam. iv, 4.
91 Berachoth 4a.
The Defective in Jewish Law and Literature 47
may be cited. This story makes it plain that the
Rabbis were solicitous about bringing the phenomenon
of Subnormality into harmony with God’s creative
plan. The story is that David said to God: “How
manifold are thy works, O God, in wisdom hast thou
made them all. 92 All that thou hast created in thy
world thou hast made well, and wisdom is the best of
all ; but Madness which thou hast created — how can it
benefit the world ?” God answered, “To Madness dost
thou object? Wait! thou wilt yet stand in need of it;
nay more, thou wilt miss it and pray that I should give
it unto thee.” Here follows the account of David’s
coming to the court of Achish, King of Gath, from
whence he escapes by feigning insanity. 98 In the
Rabbinic version of this Biblical story, David in his
extremity prays for the gift of madness, which is
granted him for the moment. And the story ends with
David’s joyful exclamation, “How desirable is Mad-
ness ! I will bless the Lord at all times, 94 in times of
wisdom and in times of madness !” 95
Insanity part of the moral scheme of God’s
world-government! 96 Truly, bold Fancy could ven-
ture no farther in bridging the gulf that exists in the
human mind between God’s wisdom and men’s woes !
Our Rabbis, in their optimism, did turn our faces
toward the light, interpreting the dark riddle of life in
» 2 Ps. 104, 24.
93 I Sam. xxi, 13-16.
»4p s 44 2
»»Shocher-Tov 39; Yalkut II, 131.
96 I feel it incumbent upon me to point out at this juncture
that I have not taken into account the belief that insanity is
due to “possession” by evil spirits, traces of which belief may
48 The Defective in Jewish Law and Literature
such a way that men of lesser knowledge and lesser
faith may understand it and be comforted.
Still more powerfully do the notes of comfort ring
forth out of the words of the prophets of Israel. We
need not be surprised that the prophets included in
their cosmic vision the sad phenomenon of Sub-
normality. For these men of God dealt as none other
did with the seamy side of life. And though their soul
was mainly troubled by the prevalence of moral evil,
yet, as superlative incarnations of the Jewish Genius,
they did not lose sight of bodily ills altogether. Both
moral and physical defects, to their view, are inter-
laced in that whimsical underweb which oft conceals
from our limited ken the harmony and the beauty of
God’s world-pattern. Hence it is not at all astonishing
that in their Vision of the End they foresaw the dis-
appearance not only of Sin but also of Subnormality.
And though some passages in which the prophets
speak of the blind being made to see and the lame being
made straight-limbed are open to figurative interpre-
tation, 97 there is one passage in Isaiah 98 lending itself
to none other than its primary, its literal construction,
which contains the soothing promise: “Then the eyes
of the blind will be opened, and the ears of the deaf
will be unstopped. Then will the lame leap as an hart
and the tongue of the dumb sing !”
To sum up : — If the Rabbis of the Aggadah have a
be found in the Bible, Rabbinic Literature, and particularly
in the New Testament; nevertheless, I believe I am not
mistaken in stating that I have, throughout my presentation,
followed the main stream of Jewish thought.
• 7 Isa. xxix, 18; xxxii, 4.
• 8 Ibid., xxxv, 6.
The Defective in Jewish Law and Literature 49
philosophy of Subnormality looking towards its cause
and origin, the Prophets have an Eschatology of Sub-
normality, looking towards its end and final extinction.
On the day when the crooked will be made straight
and the desert bloom as a rose, both cause and effect
of Subnormality will be done away with, both soul
and body will be made whole. In the meantime, the
Rabbis of the Halachah, being practical men, were
right in dealing with a knotty human problem in a
practical way. To be sure, the modern sociological
investigator, searching for what is today called the
social treatment of the Defective, will find in the
Halachic treatment of these unfortunates results that
are, from his standpoint, almost wholly negative. Of
social treatment in the modern sense, the barest traces
are to be seen in the appointment by the court of a
guardian or trustee — more, however, as an adminis-
trator of the estate of deafmute or insane than as an
embodiment of society’s wardenship over their person ;
and, further, in the fact that marriage between insane
or insane and normal was discountenanced, though not
actually prevented. Society was not ready in those
days to mete out proper social treatment to its sub-
normal or abnormal members, either by way of pre-
vention or cure. Men in those days left a great deal
to God; and who can say, conscientiously, that even
today they do not leave to Him much more than He
expects them to ? Especially in view of our own social
shortcomings, let us admit that, measured by the
standard of those early days, the Rabbis of the
Halachah had recourse to such practical measures as
fitted into the mold of their own time. Thus our final
50 The Defective in Jewish Law and Literature
word about the Defective in Jewish Law and Litera-
ture is, that if the Aggadists point the way to deep
speculation and the Prophets to sublime inspiration,
the Halachists point the way to effective service.
Capital Punishment
Among the Jews
Rev. D. De Sola Pool, Ph. D.
CONTENTS
The Four Methods of Capital Punishment . 1
(a) Stoning 2
(b) Burning 6
(c) Beheading 9
(d) Strangulation 12
Jewish Attitude towards Capital Punishment 15
Rabbinical Modifications 21
Legal Restrictions 25
Practise and Theory 35
Post-Talmudic Development 46
CAPITAL PUNISHMENT
In the following essay, an attempt is made at
tracing the history of capital punishment among the
Jews. From the Biblical period onwards, there took
place a long and complex development of the prin-
ciples, the methods and the application of capital
punishment.
The story of this development is contained chiefly
in the Old and the New Testaments, Josephus, the
Rabbinic writings and the Responsa of the Middle
Ages. The following study, which is based on these
sources, attempts to make clear what was the nature
of this development.
The Four Methods of Capital Punishment
According to a saying of the Rabbis, nine hundred
and three different methods of death have been created
for man. 1 But Rabbinic jurisprudence recognised
only four legal methods of inflicting death as the
penalty for a capital crime, namely: stoning, burning,
decapitation and strangulation. 2 One man, Yakim (or
2 Ber. 8a, with reference to Ps. lxviii, 61.
2 Mishna Sanh. vii, 1.
53
54 Capital Punishment Among the Jews
Yakom), a nephew of Jose ben Joezer (2nd cent.
B. C. E.), is said to have killed himself by all four
methods at once. He first set up a beam from which
he hung a noose. Then he arranged faggots at the
foot of the gibbet, surrounded them with stones and
set a sword with its blade pointing upwards in the
stones. He then kindled the faggots and hanged him-
self in the noose, the flames burned away the rope so
that his body fell into the fire, and at the same time on
to the stones and on the sword-blade. 3
(a) Stoning
In appraising the Jewish attitude towards capital
punishment in general, it is necessary first to examine
the history of these four methods of capital punish-
ment among the Jews. 4 The first to engage our
attention is Stoning (Sekilah).
In Biblical and Rabbinic legislation, stoning is the
punishment decreed for a number of transgressions,
such as idolatry, Moloch worship, magic, necromancy,
false prophesying, Sabbath desecration, blasphemy of
God’s Name, cursing of parent, and other crimes,
seventeen in all, listed in the Mishna. 8
Stoning was apparently the usual method of inflict-
ing the death penalty in Biblical times whenever
burning was not specifically called for. 6 It was
3Gen. Rab. lxv, 22.
4 This subject has been dealt with at length by A. Buechler,
Monatsschrift f. Geschichte u. Wissenschaft des Judentums,
1906, Vol. L.
5 Sanh. vii, 4.
«Compare Lev. xx, 10 with Deut. xxii, 24; and Num. xv, 35
with Exod. xxxi, 14f, and xxxv, 2; Matt, xxv, 37; Luke
xiii, 34.
Capital Punishment Among the Jews 55
carried out outside the camp or town or at the gate, 7
by the people or mob, without any other ceremony 8
than the casting of the first stone by the witnesses. 9
In post-Biblical times, we find that according to
John x, 31, “the Jews took up stones again to stone”
Jesus. According to Acts vii, 57f, Stephen, the proto-
martyr of the Church, was stoned, but whether by the
uprising of the mob or by judgment of the court, is not
clear. 10 According to Luke xx, 6, the chief priests
and the scribes and elders feared to suggest that John
the Baptist was not a prophet, because if they did so
“all the people will stone us.” In a passage which is
admittedly a Christian interpolation in Josephus, we
are told that the Sadducean high priest Anan (62 C. E.)
removed James, the brother of Jesus, and some others
by stoning, after a semblance of a legal trial. 11
In the Rabbinic literature also, there are incidental
references to actual cases of stoning, which may seem
to imply that in the earliest Rabbinic period lapidation
was carried out in the simple manner described in the
Bible. In the Mishna, 12 it is stated that a priest who
ministered in the Temple in a state of ritual impurity
was beaten on the skull by the young priests, with
7 Lev. xxiv, 14, 23; Num. xv, 35 f; Deut. xvii, 5; xxi, 19ff;
xxii, 24; Acts vii, 58.
8 Lev. xxiv, 16; Num. xiv, 10; Deut. xxi, 21; xxii, 21; I Sam.
xxx, 6 ; I Kings xii, 18 ; xxi, 10, 13 ; II Chron. x, 18 ; xxiv, 21 ;
Exod. xvii, 4; viii, 22; Josephus, War I. xxvii, 6; Antiq. XVI,
xi, 17; XVI. x, 5.
9 Deut. xvii, 7.
10 Overbeck, Apostelgeschichte, 114; J. Juster, Les Juifs dans
VEmpire Romain, II, 138, note 2; Schuerer, II, 262.
^Antiq., XX, ix, 1; Schuerer (4th edit.), I, 581.
12 Sanh. ix, 6.
56 Capital Punishment Among the Jews
blocks of wood. 18 In early Rabbinic times, the death
penalty by stoning was undoubtedly carried out. Rabbi
Eleazar ben Jacob (1st cent. C. E.) states that as an
exemplary measure, the Jewish court (Beth Din) in
Grecian days, imposed the sentence of stoning on one
who rode on horseback on the Sabbath. 14 Tosefta
Sanhedrin ix, 5, mentions a definite case of a man
going out to be stoned. Tradition states further that
Ben Satda, later wrongly identified with Jesus 15 , was
stoned. 16 The Beth Din in Jerusalem is also said to
have inflicted the death penalty by stoning for a case
of apparent incest and for another gross crime. 17
But whether any of these cases of stoning was carried
out in the Pharisaic method of precipitation described
in the Mishna Sanhedrin vi, 4, is not clear from the
sources. 18
It may be asked what basis there was for the
Pharisaic modification of lapidation to precipitation.
In a war with Edom, captive Edomites were killed by
being precipitated from a rock. 19 Two Jewish mothers
who had circumcised their children during the persecu-
tions of Antiochus Epiphanes are said to have been
killed by being hurled from the wall of the city. 20 The
“Compare Tosefta Kelim i, 6; Josephus, War, I, xxvii, 6.
“J. Chag. II, 14, 78a; Sanh. 46a.
18 Tos. Sabb. 104b; Chajes in Hagoren, IV, 33-37; Zucker-
mandel, Gesam. Aufsaetze, II, 193.
“Sanh. 67a; Tos. Sanh. x, 11; J. Sanh. VII. 2, 25d top.
“Kid. 80a ; Git. 57a.
“Buechler loc. cit., p. 691, doubts whether the method of
precipitation was ever legally used.
“II Chr. xxv, 12.
20 II Mace, vi, 10; but Josephus, Antiq., XII. v, 4 says that
they were crucified and then strangled by having their children
hung round their neck.
Capital Punishment Among the Jews 57
false witnesses who accused Susanna were similarly
dealt with. 21 The gospel according to Luke relates
that the people of Nazareth wished to cast Jesus
headlong from the brow of the hill whereon their city
was built. 22 Precipitation was therefore a well recog-
nised modification of lapidation, and not a sheer
invention of the Rabbis.
A similar modification was very early introduced in
the treatment accorded to the scapegoat. Instead of
the scapegoat being sent forth into the wilderness, as
the Bible describes, 23 it was in practise precipitated
from a rock. Similarly, the Pharisaic tradition early
substituted precipitation for stoning in the case of
human punishment. According to a convincing
emendation of a Talmudic text suggested by L.
Ginzberg, 24 precipitation had taken the place of lapida-
tion at least as early as the time of R. Jochanan ben
Zaccai, (fl. 75 C. E.).
The Rabbis held lapidation to be the most severe of
the four death penalties, and precipitation was regarded
as a humane modification of it. The Mishna states
that the victim was thrown from twice a man’s height,
i. e., about 1 1 feet. But if you wish to ensure a certain
and easy death, asks the Talmud, why not cast him
from a greater height? The answer is given because
that would lacerate the body. 25 The words “his blood
21 Susanna 62, LXX text.
22 Luke iv, 29.
23 Lev. xvi, 22.
“Students’ Annual, 1914, pp. 146, 147. I gladly take this
opportunity of acknowledging my indebtedness to Prof.
Ginzberg who read this essay in manuscript and gave me
valuable suggestion on many points.
25 Sanh. 45a bottom.
58 Capital Punishment Among the Jews
shall be on him” 26 were taken as implying that he shall
be so killed that the blood shall remain in him. The
change in method advocated by the Pharisees therefore
seems to have had for its purpose the desire to make
the death more humane, certain and speedy, and to
preserve the body so far as possible from being
mangled. The custom of giving to the one condemned
a wine compounded with myrrh to dull the senses, 27
would be another expression of this desire to rob the
punishment of its horror and pain.
(b) Burning
The second death penalty, that of Burning
(Serefah), is prescribed by the Biblical law for a
priest’s daughter who commits adultery, and for the
crime of incest with mother and daughter. 28 The house
of the guilty may also have been burnt. 29 There is no
reason to doubt that this punishment in Biblical times
involved the actual burning of the living victim. 30
In post-Biblical times, we find that on March 13,
4 B. C. E., Herod burnt alive Matthias and his com-
panions who had pulled down the golden eagle set up
over the gate of the Temple. 31 But this was the act of
a despotic monarch and not of a court of law. Josephus
reports about himself that the Galilean mob regarded
2«Lev. xx, 9, 11, 12, 13, 16, 27.
27 Sanh. 43a; Mark xv, 23; Matt, xxvii, 34; Prov. xxxi, 6.
28 Lev. xxi, 9; xx, 14; Cf. Gen. xxxviii, 24 (Tamar) and
Josh, vii, 15, 25 (Achan).
2 »Jud. xii, 14, 15; Josh, vii, 15, 24; Josephus, War, II. xxi,
3, 7.
30 Josephus, Antiq., IV, viii, 23, to Levit. xxi, 9. Compare
Dan. iii, 6.
31 Josephus, Antiq., XVII, vi, 4; War, I, xxxiii, 4.
Capital Punishment Among the Jews 59
him as a traitor, and some cried out to stone the traitor
and others to burn him. 82 This also would have been
the act of a passionate populace in wartime, and not a
legally imposed punishment. But there is one well
attested instance in early Rabbinic times of an actual
burning by decree of a court of law. This was re-
ported by Rabbi Eleazar ben Zadok (fl. c. 100 C. E.),
who said that as a young child he had seen the
adulterous daughter of a priest bound around with
vine branches and burnt. 83 His fellow Rabbis, repre-
senting the Pharisaic tradition, declared that such a
course of action involving a literal burning, could have
been carried out only by an unlearned court (Mishna),
or, according to R. Joseph, by a Sadducean court. 84
The Book of Jubilees, which is also Sadducean in its
Halacha, prescribes burning for the marriage of a
Jewess with a non-Jew, for adultery and incest. 85
But the Pharisaic tradition, as is well known,
mitigated the severity of the punishment by changing
it into strangulation followed by a slight, almost
symbolic burning of the throat and inward parts. 88
The reasons for the change of method are apparently
the same as in the case of stoning, first, the desire to
rob the death of its pain 87 , and secondly, to avoid
marring the body.
**War, II, xxi, 3.
33 Mishna Sanh. vii, 2; Tos. Sanh. ix, 11; J. Sanh. VII, 24b;
B. Sanh. 52b.
3*Sanh. 52b.
“Jubilees xxx, 7; xx, 4; xli, 25, 26. For the Pharisaic view
of the application of this penalty, see Mishna Sanh. ix, 1.
36 Mishna Sanh. vii, 2. R. Jehudah while upholding this
method suggests a modification of the procedure.
“Tos. Sanh. ix, 11.
60 Capital Punishment Among the Jews
This latter reason is emphasized in the statement of
Rab Mathna in the Talmud 38 , that the modification in
the method was approved so that the breath of life
should be burnt out and the body preserved, as was
supposed to have been the case with the sons of
Korah. 39 Rabbi Eleazar adduces the same reason,
referring to the case of the sons of Aaron. 40 The
Tannaitic tradition held that Nadab and Abihu met
their death through two narrow tongues of flame
coming forth from the holy of holies, each dividing
into two and entering into the nostrils of the two men,
thus burning out the breath of life and leaving their
clothes and their bodies uninjured. 41 Similarly, the
Syriac Apocalypse of Baruch says that Sennacherib’s
army was burnt by God only within their bodies. 42
This statement reflects the Midrashic tradition that
because Shem covered his father’s nakedness, the
clothing of his Jewish descendants Nadab and Abihu,
and of his non- Jewish descendants composing Senna-
cherib’s army, was not burnt when the fire of the Lord
burnt out their lives. 43
In all this is emphasized the Pharisaic desire to
preserve the body of the victim uninjured. According
to R. Joseph, who declared that a court which sentenced
S8 Sanh. 52a.
89 Num. xvi, 35.
*°Lev. x, 2, 6. Sifra ed. Weiss ibid., 45c, 34; 46a, 41;
Tosafoth Sanh. 52a.
41 Sanh. 52a; Sifra 45c, 34. But contrast Josephus Antiq.,
Ill, viii, 7, who says that their faces and breasts were burnt.
* 2 Baruch lxiii, 8 ; Susanna 62, LXX text, says that fire from
heaven burnt the false witnesses after they had been
precipitated.
“Lekach Tob to Noach IX, 23 ; Tanhuma Noach 21, p. 25b,
Capital Punishment Among the Jews 61
to an actual burning must have been a Sadducean
court, 44 this consideration was not of weight with the
Sadducees. It has been suggested therefore, that this
desire of the Pharisees may have been connected with
their belief in the resurrection of the body, a belief
rejected by the Sadducees. 45
The method of burning advocated by the Pharisees
does not seem to go back beyond the Christian era.
The incident of the actual burning of the priest’s
daughter, witnessed by Rabbi Eleazar ben Zadok
shortly before the fall of the Temple, might be inter-
preted as implying that the change in method was then
taking place. 46 There is no mention in the sources of a
case of burning being carried out in the Pharisaic
manner, although the full details preserved in the
Mishna, describing the application of the method,
would imply that the method had been in use. But
the number of cases of the possible application of the
penalty was limited, and a burning must have been a
rare occurrence.
(c) Beheading
The third legal capital punishment recognised by
the Rabbis is Beheading (Hereg). Death by the
sword, although recognized in a blood feud and often
used by kings, 47 is nowhere mentioned in the Bible as
“Sanh. 52b.
«N. Bruell, Beth Talmud, 78, quoted by Buechler /. c. 558,
note 1.
46 Notice also the contradiction between Josephus’ account
of the burning of Nadab and Abihu and the Pharisaic tradition
referred to above, note 41.
«*E. g. II Kings x, 7.
62 Capital Punishment Among the Jems
a penalty ordered by law, except for the apostasy of a
whole community. 48 According to the Mishna, 49
murder also is punished by beheading. The Boethu-
sians, 50 the Samaritans, 51 Philo, 52 Jesus, 53 Josephus, 54
the Book of Jubilees, 55 Eliezer ben Hyrcanus,
(1st cent. C. E.), 56 like the later Karaites, 57 all agree
in recognizing the Biblical talio as the punishment for
murder. This does not necessarily imply that the
method of inflicting the death penalty had to be the
same as the method used by the murderer. It implies
only that murder was punishable by death.
The Pharisaic ruling that the death penalty for
murder was inflicted by decapitation is not disputed
by any of the Rabbis. 58 But the method of the
execution is debated. The Mishna states that the
victim’s head was cut off at the throat with a sword,
as the (Roman) government carried out an execution. 59
R. Jehudah (135-220 C. E.) objected that this jus gladii
would disfigure the victim. 60 He therefore advocated,
that instead of the old method recognized by the
Rabbinical tradition, the murderer’s head should be
48 Deut. xiii, 13-16.
49 Sanh. ix, 1 ; Mechilta to Exod. xxi, 12.
50 Scholion to Megillath Taanith 4.
B1 Revel, Jew. Quart. Rev., New Series, III, 364, note 86.
52 Ritter, Philo und die Halacha, 18ff.
63 Matt. v, 38; see also xxvi, 52.
* 4 Antiq., IV, viii, 35.
B5 Jubilees iv, 32.
56 Baba Kamma 84a.
87 Revel, Jew. Quart. Rev., New Series, III, 364-366.
68 Mechilta 83b to Ex. xxi, 20.
89 Sanh. vii, 3.
eo Similarly Baba Bathra 8b, Death by the sword is worse
than a natural death because it disfigures.
Capital Punishment Among the Jews 63
placed on a block and chopped off at the neck with an
ax. The Rabbis protested that this method of be-
heading advocated by R. Jehudah would be far more
shameful to the victim than that common to the Jews
and the Romans. R. Jehudah admitted the force of
their objection, but defended the method advocated by
him because it was not the same as Roman custom.
The Talmud then proceeds to eliminate other possible
methods of killing by the sword, such as piercing or
cleaving the body, by quoting the principle of the
golden rule “Thou shalt love thy neighbor as thyself.” 61
Therefore we must choose for him the easiest death.
The comparison is then brought with the heifer that
was killed to atone for bloodshed. 62 As the heifer,
the substitute for the unknown murderer, was killed
by having its throat cut, so the known human murderer
had his throat cut and not his head chopped off at the
neck, the golden rule again being quoted as authority. 68
In this case also the sources do not mention an
actual case of decapitation being carried out by a
Jewish court. According to the New Testament,
Herod Antipas had John the Baptist killed by be-
heading, 64 and Agrippa I. caused James the apostle,
the brother of John, to be killed by the sword. 65 But
“Lev. xix, 18.
« 2 Deut. xxi.
« 3 Sanh. 52b; Mechilta 83b to Exod. xxi, 20; J. Sanh. VII,
24b. Also Genesis Rabba 44 beginning, and the legend of the
neck of Moses becoming hard as marble before the sword of
Pharaoh. J. Berachoth, ix, 1 (where the exact phrase used by
the Mishna occurs) ; Exod. Rab. 1 to Exod. ii, 15.
“Matt, xiv, 10 ; Mark vi, 27 ; Luke ix, 9. Cf . the interpola-
tion in Josephus, Antiq., XVIII, v, 2.
“Acts xii, 2. Cf. Rev. xx, 4 of the Christian martyrs.
64 Capital Punishment Among the Jews
neither of these executions was ordered by a Jewish
court of law.
(d) Strangulation
The fourth method of capital punishment recognised
in Pharisaic tradition is Strangulation (Henek).
Strangulation does not appear in the Bible as a
recognised legal method of punishment. The only
Biblical instance of death by strangulation is the
suicide of Ahitophel. 66
The Mishna 67 specifies strangulation as the punish-
ment for the son who purposely wounds his parent,
for the false prophet, for the one who prophesies in
the name of idolatry, for stealing a Jew, for adultery
with a married woman, seducing a priest’s betrothed
or married daughter, etc. It was the method of capital
punishment preferred by the Rabbis; for R. Yoshia
said that wherever the Bible does not specify the
method of carrying out the capital sentence, strangula-
tion should be adopted because it is the least severe
measure. Rabbi Jonathan also said that strangulation
should be adopted, even though in his judgment
strangling is not an easier method of death than other
methods. 68 The reason for this preference seems to
be because of the four legally recognized methods of
capital punishment, strangulation as it was carried
out was the only one which left the body practically
uninjured. The condemned man was to be sunk up to
66 II Sam. xvii, 23; Cf. I Kings xx, 31 “ropes upon our
heads.” Tobit ii, 3 (Strangulation).
67 Sanh. xi, 1.
« 8 Sanh. 52b bottom; Sifra 92a, 11.
Capital Punishment Among the Jews 65
his knees in mud and then strangled by having a hard
cloth which was wrapped in a soft one twisted around
his neck and pulled in opposite directions until the
suffocated victim died. 69 Strangulation therefore
satisfied the Rabbinic desire to avoid marring the body
far better than did stoning, burning or decapitation.
R. Jehudah explains that the death penalty as inflicted
by man should be like that inflicted by God in not
injuring the human body. 70 This consideration it was,
also, as we have seen, that played a large part in in-
ducing the Rabbis to mitigate the method of burning,
by reducing it to strangulation followed by an almost
symbolical burning.
Again, in this case, the sources do not mention any
definite case in which the punishment of strangulation
was actually carried out as a result of a court judg-
ment. But it is clear that strangulation induced in
the older manner of hanging was not infrequently
consummated in the earlier Rabbinic period. Raguel’s
daughter Sarah “thought to have hanged herself.” 71 A
proverbial remark in the mouth of Rabbi Akiba (d. c.
132 C. E.), ‘if you wish to strangle yourself, hang
yourself on a high tree’, 72 would indicate that hanging
was a well recognised method of death. According to
one source, Judas Iscariot hanged himself. 73 It is
reported by Rabbi Eleazar, 74 that Simon ben Shetach
(fl. 80 B. C. E.) hanged women in Ascalon. But in
69 Mishna Sanh. vii, 3.
â„¢Sanh. 52b; Sifra 92a, 11.
71 Tobit iii, 10.
“Pes. 112a bottom; cf. Semachoth II, 3.
73 Matt. xxvii, 5. But see the different story in Acts i, 18.
74 Mishna Sanh. vi, 4.
66 Capital Punishment Among the Jews
this case the question arises whether they were hanged
alive or hanged as a reproach after they had been
otherwise killed.
Hanging, according to Biblical custom, was meted
out to the dead body of one who had been otherwise
killed. The order of the words in Deut. xxi, 22, 23
implies, that first the malefactor has been put to death,
and then as an added indignity his corpse is suspended.
The same treatment of hanging the corpse was meted
out to the murderers of Ishbosheth. 75 Similarly, Joseph
tells the chief baker that in three days Pharaoh will
take off his head and then hang his dead body. 76 The
dead bodies of Saul and Jonathan were hung up by the
Philistines. 77 The five kings were first killed by
Joshua and then hanged. 78 A momentary hanging of
the corpse was recognised by the Rabbis in the case of
the male idolator or blasphemer. 79 From these
examples of Jewish custom and from the context in
the Mishna and Talmuds, it becomes clear, that the
witchcraft victims of Simon ben Shetach’s zeal, were
hanged in ignominy after the death penalty had been
otherwise inflicted. In any case, the discussion in the
Mishna and the Talmud 80 shows that the action of
Simon ben Shetach was an exceptional action, from
which no conclusion as to the regular course of law
could be drawn. There is consequently no evidence of
“II Sam. iv, 12.
“Gen. xl, 19.
“II Sam. xxi, 12.
“Josh, x, 26. But in Persia, the victim may have been
hanged alive, as the book of Esther seems to imply.
“Mishna Sanh. vi, 4; Sanh. 46b; J. Chag. II, 78a.
*<>Sanh. 46b.
Capital Punishment Among the Jews 67
hanging alive ever having been carried out by a judicial
sentence of the Rabbis. It need scarcely be added that
the Roman punishment of crucifixion was a penalty
unknown to Jewish law and abhorrent to Jewish
feeling. The inhuman savageness shown by Alexander
Jannaeus in crucifying his prisoners of war was no
more a legally recognised form of capital punishment
than was his cutting the throats of the wives and
children before the eyes of the crucified victims. 81
Jewish Attitude Towards Capital Punishment
Having summarized the history of the four methods
of legal capital punishment recognised by the Jews,
we are now in a position to review more broadly the
question of the Jewish attitude towards capital
punishment.
The Hebrew Bible undoubtedly stands for the prin-
ciple of capital punishment, as has clearly emerged
from the detailed consideration of the particular
methods of inflicting the death penalty set forth above.
In Biblical times, when the organization of Jewish
society was comparatively simple, retributive justice
brooked few of the law’s delays. In the simplest and
most rapid manner, the avenger of blood exacted the
penalty of life for life. Society protected itself by a
swiftly effective punishment.
But the Bible recognises in capital punishment also
a deterrent character and an expiatory character, in
addition to its retributive character. It holds capital
punishment to be a necessity as a deterrent. The phrases
“Josephus, War, I, iv, 6.
68 Capital Punishment Among the Jews
“and thou shalt remove the evil from thy midst,” “and
Israel shall hear and understand and no more do this
evil,” which occur many times, coupled with the
admonition to impose capital punishment, show that
this preventive purpose was closely associated with the
imposition of the death penalty. Malicious false
witnesses had to be treated as they would have treated
the one against whom they had testified, so that the
public should take warning. 82
The Bible also teaches explicitly that capital punish-
ment is the just punishment for murder, in order to
atone for the pollution of the land. 83 No pity was to
be shown to the wilful murderer. 84 The right of
sanctuary granted to the one guilty of manslaughter,
was not granted to the murderer, 85 and the crime of
shedding innocent blood had to be atoned for in order
to cleanse the sacred community of Israel. 86
Yet the old Testament teaching of justice is tem-
pered by mercy. “But if the wicked turn from all his
sins … he shall surely live, he shall not die . . . Have I
any pleasure in the death of the wicked ? saith the Lord
God ; and not rather that he should turn from his way
and live.” 87 It was a duty to try to save those going to
death. 88
The New Testament also admits the right of society
82 Deut. xix, 16-21. Cf. also Deut. xiii, 12, xvii, 13, xxi, 21 of
the rebellious son, where the deterrent nature of the punish-
ment is again specifically mentioned.
83 Num. xxxv, 33; Deut. xix, 13.
84 Deut. xix, 11-13.
85 Exod. xxi, 14; Num. xxxv, 11, 12.
86 Exod. xxi, 13.
87 Ezek. xviii, 21-23; xxxiii, 14-16, 19.
88 Prov. xxiv, 11-13.
Capital Punishment Among the Jews 69
to exact capital punishment. 89 We have seen that
Philo, Josephus 90 and the apocryphal and apocalyptic
books also do not doubt the reasonableness and neces-
sity of capital punishment. In the last pre-Christian
century, the Jewish people, particularly the Sadducees
who were in the ascendant, still followed the Bible in
their maintenance of the theory and the practise of
capital punishment. The letter and the spirit of the
Biblical laws governed Jewish practise. But in the first
post-Christian centuries, these teachings of the Bible
were modified in many directions.
It may be safely affirmed that the Rabbis did not
question the right of society to inflict capital punish-
ment, even though they pictured God as grieving over
the death of the wicked. 91 In the Mishna, they
enumerated thirty-seven crimes (nineteen of morals,
twelve of religious law, three against parents and three
assaults), which they held to be punishable by death.
In commenting on the Biblical warning “thine eye
shall not spare the wilful murderer,” they say ‘thou
shalt not say wherefore should I punish murder by
murder. The one whom thou knowest indubitably to
be guilty of a premeditated murder thou shalt not pity
nor spare.’ 92 The sternness of the capital sentence was
recognised by the Rabbis as being in the best interests
both of the criminal and of society. 98 “When the
89 Matt. xy, 4; xxvi, 52; John xix, 10, 11; Acts xxv, 11;
Romans xiii, 1-14.
90 Cont. Apion., II, 31, “the punishment for most sinners is
death.” Antiq., IV, viii, 35.
91 Mishna Sanh. vi, 5.
92 Sifre to Deut. xix, 13. Cf. Deut. xiii, 9 of the seducer to
idolatry.
98 Mishna Sanh. viii, 5.
70 Capital Punishment Among the Jews
wicked perish there is joyful shouting,” was quoted in
justifying the death penalty, to convince those who
hesitated to help bring a capital offender to justice. 94
R. Akiba declared that so long as sinners such as
Achan remain alive, the Divine anger rests upon the
community. But when they are put to death, the
Divine favor is restored. 95 The noxious thorns in the
garden of humanity must be destroyed. 96 When Akiba
(d. c. 132 C. E.), claimed that had he been a member
of the Sanhedrin, a death sentence for murder or
immorality would never have been imposed, Rabbi
Simon ben Gamliel retorted “had you been a member
of the Sanhedrin, you would have been responsible for
the increase of murders.” 97
The Rabbis also approved of the preventive char-
acter of the Biblical death penalty. For instance, the
death penalty for the rebellious, gluttonous son, is
regarded by them not as a punishment commensurate
with the wrong that the son may have committed, but
as a preventive measure, necessary for society and
necessary for the criminal. In explaining why the son
must pay the penalty of death even though he has not
spilled blood nor committed any major offence, they
say that the Torah looks ahead. Let him die before he
has incurred graver guilt ; otherwise he will sink lower
and lower until finally he commits a capital offence.
Therefore he should be put out of the way as a pre-
84 Prov. xi, 10; Mishna Sanh. iv, 5.
85 Mishna Sanh. x, 6 end, with reference to Josh, vii, 1 and
vii, 26.
98 Genesis Rabba 44 to Gen. xv, 1.
87 Mishna Mace, i, 10; Mace. 7a, Tosafoth.
Capital Punishment Among the Jews 71
ventive measure. 98 Although we immediately see the
danger lurking in such a principle of preventive pun-
ishment, the recognition of this principle by the Rabbis,
is further evidence that in theory they approved of the
death penalty.
Furthermore, the Rabbis approved of a fitting
retribution. Biblical justice demands that the punish-
ment correspond with the crime. He who digs a pit
should fall into it.” The Psalmist prays that God may
repay the wicked according to the works of their
hands. 100 The Rabbis recognise this principle of
retribution in kind in every phase of life. 101 The
principle underlying the talio is that which they call
“measure for measure.” 102 Bloodshed, according to
this principle, could be expiated only by bloodshed. 108
The Rabbis also saw in the death penalty an expia-
tion of the sin that had been committed. This supreme
expiation was religious in character, and was brought
into connection with the Temple and its sacrificial
worship. Thus it is stated that only so long as the
altar stood, 104 or the priest officiated, 106 could the
98 Mishna Sanh. viii, 5 ; Sanh. 72a ; Sif re to Deut. xxi, 18-21.
It must be remembered that this case is purely theoretic. See
text to notes 214 and 215.
“Ps. vii, 16f ; Eccl. x, 8f ; Prov. xxvi, 27; Ben Sira xxvii, 26.
100 Ps. xxviii, 4; Isa. iii, 10, 11; Job xxxiv, 11; Obad. 15;
Lev. xxiv, 19; Prov. xxiv, 29; Jer. 1, 29.
101 Aboth ii, 7; Sota i, 8; Num. Rab. xviii, 18; Sota 8a, 11a;
Pes. 28a ; Baba Kamma 92a.
102 Sanh. 100a, bottom ; Mishna Sota i, 7.
103 Gen. ix, 6, which is not necessarily meant originally as a
legal principle, but which is used by the Rabbis as such,
Sanh. 57b. Cf. Matt, xxvi, 52; Sanh. 72b.
104 Mechilta de R Simon, p. 126, with reference to Exod.
xxi, 14.
105 Sanh. 52a with reference to Deut. xvii, 9; Maimonides
Hilch. Sanh. xiv, 11.
72 Capital Punishment Among the Jews
death penalty be carried out. 106 According to the
opinion of R. Akiba, 107 a capital sentence on “a defiant
elder” could not be consummated outside of Jerusalem,
nor even in Jabneh by the great Sanhedrin, while the
Temple still stood; but he should be brought to
Jerusalem and put to death on one of the middle days
of the next festival when the city and the Temple
were thronged with worshippers. Those condemned
to death were given the opportunity to confess their
sins when within ten cubits of the place of execution,
the confession opening for them the gates of the
future world. 108 It is related of one condemned man
that when bidden confess he prayed “May my death be
an atonement for all my sins”. . , 109 If the condemned
man was unable to confess fully, he was bidden say
“May my death be an atonement for all my sins.” 110
These four considerations, (a) the plain command
of the written word of the Torah, (b) the recognition
of the deterrent and preventive value of capital
punishment, (c) the claims of just retribution and (d)
the recognition of the expiatory character of the death
penalty, leave it beyond doubt that the Rabbis approved
of the theory of capital punishment. They accepted
without question the teachings of the Torah, implying
the justifiability of imposing the death penalty. At the
same time, numberless passages testify to the sacred-
106 The Jewish courts outside of Palestine were considered
as having jurisdiction in capital cases only so long as the
great Sanhedrin continued to hold its sessions in the special
hall of the Temple. Mishna Mace, i, 10.
107 Mishna Sanh. xi, 4 in connection with Deut. xvii, 13.
108 Mishna Sanh. vi, 2 ; Sif re Zutta to Num. v, 6.
109 Tos. Sanh. ix, 5.
110 Mishna Sanh. vi, 2.
Capital Punishment Among the Jews 73
ness in which they held human life, 111 and many
passages prove that they had a vivid sense of the
irrevocability of a consummated death sentence. To
put a man to death wrongfully is as though one
destroyed the whole world. 113
Rabbinical Modifications
But it is no less clear that the Rabbis did not favor
capital punishment in practise. It is true, as will be
shown later, that after the fall of the Temple in
70 C. E., they no longer had the right of imposing the
death penalty. But we possess their theory of what
their practise would have been had they had the
opportunity of exercising it, and this theory tends
altogether in the direction of modifying capital pun-
ishment to its virtual abolition.
The problem with which the Rabbis grappled was
how could the death penalty which was demanded by
the Law be mitigated in the face of the explicit words
of the Torah. Commutation of the death sentence by
a fine or by wergild could not be considered where the
Bible did not specify the option of a ransom (Kofer).
The Torah expressly prohibits modifying into a fine
the death penalty which was the due of the murderer. 118
The Bible furnishes no precedent for commuting the
death penalty to one of deportation. Exile involved
the banishment of the Jew from the full exercise of
111 Their use of the phrase “worthy of death” applied to such
mild offenders as the scholar with stained clothing (Sabb.
104a), is naturally to be understood as an emphatic hyperbole.
112 E. g. Mishna Sanh. iv, 5; Tos. Sanh. ix, 5; Mace. 5b.
” 3 Num. xxxv, 31, 32; Exod. xxi, 30, 32.
74 Capital Punishment Among the Jews
Judaism. Herod was condemned for selling law-
breakers out of the kingdom. “For slavery to foreigners
and such as did not live after the manner of the Jews,
and necessity to do whatever such men should com-
mand, was an offence against our religion rather than
a punishment to such as were found to have offended,
such a punishment being avoided in our original
laws,” — the Bible. 114 The cities of refuge no longer
had asylum power. Exile was considered a more
grievous punishment than death by the sword or by
starvation and was regarded as harder even than death,
itself the hardest of the ten hardest things created in
the world. 115 Enslavement to Jews was specified by
the Bible as a legitimate punishment only in certain
cases. 116 Similarly, both the application and the
severity of scourging were limited. 117
Prisons in Jewish antiquity were used usually as a
ward house in which the accused was detained until
sentence could be pronounced. 118 But sometimes the
prison seems to have been used also as a punitive
institution. 119 In one instance, the principle of com-
muting a death penalty to a sentence of life imprison-
114 Josephus Antiq., XVI, i, 1. Compare I Sam. xxvi, 19.
” 5 Baba Bathra 8b, 10a.
116 Exod. xxii, 2 ; II Kings iv, 1 ; Josephus Antiq., XVI, i, 1.
117 Lev. xix, 20; Deut. xxii, 18; xxv, 3; II Cor. xi, 24; Luke
xxiii, 15, 16, 22 ; Josephus Antiq., IV, viii, 21 ; XIII, x, 6 ;
Mace, iii, 1 seqq., 15. But see Maimonides Sanh. 19, where
among the two hundred and seven cases for which flagellation
is the legal punishment, eighteen cases are enumerated in
which flagellation is imposed on the one deserving death
“from the hands of Heaven.”
118 Lev. xxiv, 12 ; Num. xv, 34 ; Acts iv, 3 ; xii, 4 ; xxii, 19 ;
Mechilta Mishpatim VI, p. 83a; Schechter, Sectaries, p. 12,
11. 2-6; Sulzberger, Jew. Quart. Rev., 1914-15, V, 598-604.
119 Ezra vii, 26.
Capital Punishment Among the Jews 75
ment is recognised. The Mishna prescribes 100 that
when a man has twice committed a crime for which
excision is the penalty and he has received the lash
twice, on his committing this crime a third time, he is
imprisoned and fed on barley until he bursts. Or
when one has committed a murder and there are no
witnesses to condemn him, he is imprisoned and fed
on frugal fare of bread and water. 121 In other words,
when a murder has been committed and it is certain
that the accused man was the murderer, but owing to
legal technicalities, 122 it is impossible legally to prove
his guilt; or if the circumstantial evidence is
thoroughly convincing, 128 the Rabbis felt that it would
be dangerous to society and against all principles of
justice to allow such a known murderer to go free. In
any of these cases, he should be imprisoned in a den
of the height or length of a man and fed in such a
manner as to bring about his early death. This seems
to be the only passage in Rabbinical literature in which
imprisonment is spoken of as a possible mitigation of
the immediate death penalty.
From one passage 124 it would seem that in later
Rabbinic times, (c. 350 C. E.), when the penalty of
death for murder could no longer be imposed by the
Jewish court, it was recommended that the death
sentence be commuted into one of blinding the mur-
120 Sanh. ix, 5.
i2*Cf. I Kings xxii, 27.
122 Either the witnesses were separated and not together,
(Rab), or the witnesses had not warned the murderer,
(Samuel), or they had tripped up in giving evidence, (Abimi).
123 J. Sanh. ix, 5.
12 *Sanh. 27a bottom.
76 Capital Punishment Among the Jews
derer. When it was reported that Bar Chama had
committed a murder, the Exilarch bade Rab Abba (or
Acha) bar Jacob investigate the case. If it proved that
Bar Chama was guilty, his eyes should be put out. 126
But this passage stands alone, and does not allow us
to draw any conclusion as to a general practise. More-
over the expression “to put out his eyes” may possibly
be figurative, meaning imposing a fine or taking away
authority. 128
We see, therefore, that the necessity of adhering to
the express commands of the Torah prohibited the
Rabbis from commuting a death sentence into scourg-
ing, imprisonment, blinding or any other kind of
mutilation, exile, enslavement, a fine or any other
punishment. The exact words of the Torah had to be
upheld.
Therefore, while rigidly maintaining the Biblical
principle of capital punishment, the Rabbis availed
themselves of their right to modify the method of
executing the death sentence. If they upheld the death
penalty, there was nothing to prevent their mitigating
the severity of its application in every way possible.
We have already seen how stoning was modified in
practise to precipitation, and burning modified to
strangulation followed by a nominal burning. Our
consideration showed that these changes in method
125 The blind is one of the four classes (poor, leper, blind,
childless), who are considered as dead. Nedarim 62b.
Practically, the one blinded is rendered harmless for the
future.
126 Rashi ad loc. Kohut’s Aruch 3H . See also Peah viii, 9
of the unjust judge, “until his eyes grow dim,” with reference
to Exod. xxiii, 8, Deut. xvi, 19.
Capital Punishment Among the Jews 77
apparently came about in order to secure the easiest
and most humane methods of death, (since according
to the golden rule even the condemned criminal is
one’s brother), and in order to spare the body, so far
as possible, all mutilation or disfigurement. The
general principle governing the lightening of the
methods of death was that wherever the Torah does
not specify which method of death is to be employed,
the easiest and most humane method is to be used. 127
Legal Restrictions
But the most thoroughgoing modification of the
system of capital punishment was not brought about
through change in the methods of imposing the death
penalty, but through surrounding the accused with so
many legal safeguards that it became virtually im-
possible ever to impose a death sentence.
The law limited the right of trying capital cases to the
high tribunal of twenty-three, not even the king having
the right to put to death other than through the San-
hedrin. 128 According to Rabbinical tradition, one very
large class of capital cases was taken out of the juris-
diction of any human court, namely those in which the
Bible stipulates Kareth or Excision as the punishment.
This ruling at one stroke absolved the Rabbinical
courts from the obligation of imposing the death
sentence in a large number of cases.
In many passages in the Pentateuch it is stated that
the one committing certain transgressions “will be cut
“*Sifra 92a, 11; J. Sanh. VII, 24b; Sanh. 52b, bottom.
128 Josephus, Antiq., XIV, ix, 3; Mishna Sanh. ii, 2.
78 Capital Punishment Among the Jews
off from his kinsfolk.” 129 Modern Biblical scholars
understand the phrase as referring to the imposition of
the death penalty by the court. The Karaites also
understood Kareth in this sense, through a comparison
of Exod. xxxi, 14b with the parallel passages xxxi,
14a, 15 and Num. xv, 35. The one passage prescribes
Kareth, the others prescribe death as the punishment
for Sabbath profanation. Similarly Kareth in Lev.
xx, 3 is the equivalent of stoning, the punishment
designated in the preceding verse for Moloch worship ;
and Kareth for blasphemy in Num. xv, 30 is the
equivalent of stoning mentioned as the punishment for
the same crime in Lev. xxiv, 14. The fate of Achan, 130
of Naboth, 131 and of the adulteress, 132 would seem to
show that the whole family of the convicted person
could judicially be put to death. In some cases, 133 the
death penalty is specified as well as the penalty of
Kareth.
None the less, the Rabbis consistently understand
Kareth to be not a death penalty inflicted by man but
a punishment left in the hands of Heaven. Thus the
Rabbis interpret Kareth specifically as dying child-
less, 134 or as dying at 50 years, or, according to Raba,
between 50 and 60 years, before completing the other-
wise destined span, 135 or as the cutting off of the soul
129 Usually translated “cut off from his people.” But the
Hebrew term amav is plural and seems to mean ‘kinsfolk’
rather than ‘people.’ Gen. xvii, 14; Exod. xii, 15, 19;
xxx, 33, 38; Lev. vii, 20f, 25, 27; xvii, 4, 9, 10, 14; xx, 6;
xxii, 3; Num. xix, 13, 20, etc., etc.
130 Josh. vii, 24f.
131 I Kings xxi, 3 ; II Kings ix, 26.
132 Ezek. xxiii, 47; Cf. also II Kings xxv, 7; Num. xvi, 32.
183 E. g. Exod. xxxi, 14; Lev. xviii, 7, 8, 15, 20, 23, 29.
Capital Punishment Among the Jews 79
in the future life. 188 For this interpretation of Kareth
as a punishment by Heaven would speak the personal
pronoun in the phrase, “/ will cut off,” the active form
sometimes used. 137 For this would also speak the
passages wherein the death penalty is threatened as well
as Kareth, usually adduced as favoring the other inter-
pretation of Kareth, if we understand them, as we
well may, as threatening an alternative, either the
death penalty by the court or Kareth by God. That
this may be the meaning is clear from a careful reading
of Lev. x, 1-5, wherein the Moloch worshipper is
threatened with death by stoning at the hands of the
people, or if the people do not so punish him, then God
will cut him off. Such phrases as “they shall bear
their sin,” 138 or “they shall bear their sin and shall die
childless,” 139 or “they shall die childless,” 140 would
also be most naturally understood as taking the right
of punishment away from the human court and
leaving it to Heaven. It has been suggested that the
Niqtal form, usually translated as passive “and shall
be cut off,” should be understood in a reflexive sense,
“(that soul) cuts i