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

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

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

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

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

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

_Circ.u.mstantial evidence was irrelevant under Hebrew law._ "The sages had very little more confidence in circ.u.mstantial evidence given for the purpose of 'taking money out of' the defendant's pocket, than in that given for the purpose of inflicting the penalty of death or stripes.

Ket. ii. 10 has been cited, according to which a witness may testify that, when a boy, he saw a woman walk about in maidenly attire; the object being to prove that she married as a maiden, not as a widow, and is therefore ent.i.tled to a greater sum for her jointure. In discussing this clause, the Talmud remarks that this is only arguing from the majority of cases; for though in most cases those wearing maidens'

attire are not widows, occasionally they are; and money ought not to be taken out of a man's pocket on reasoning from the greater number of cases. In fact, circ.u.mstantial evidence was generally rejected."[153]

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

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

_Kinds of Oral Testimony._--Hebrew oral testimony is divided by the Mishna into three leading cla.s.ses:[155]

(1) Vain testimony.

(2) Standing testimony.

(3) Adequate testimony.

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

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

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

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

This peculiar proviso seems to have been intended to serve three distinct purposes: (1) To protect the would-be offender against his own ignorance and rashness and to prevent the commission of crime by a timely warning; (2) to aid in establishing guilty intention, that is, criminal intent, at the trial of the prisoner, after the commission of the offense; (3) to enable the judges to determine the exact penalty to a.s.sess. The first two purposes are self-evident. The third merits a brief consideration. To complete the warning, it was essential that the offender be told the exact penalty attached to the crime which he was about to commit; whether the punishment was capital or corporal, and the exact kind, if capital; that is, whether beheading, burning, stoning, or strangling. Now, it often happened that two crimes were committed by the same person in one day; the penalty for one of which being flagellation and the other death. And it sometimes happened that two different crimes were the result of one criminal transaction. In such a case, the nature of the Antecedent Warning would guide the judges in decreeing punishment. To ill.u.s.trate: The Mosaic Code forbids the killing of either a cow or a ewe "and her young both in one day";[158] and a violation of this prohibition, according to Rabbinic law, entails the punishment of flagellation. Another Mosaic ordinance imposes the penalty of death on the Jewish idolater.[159] Now, it might have happened that the last two offenses mentioned were committed by the same person at the same time, as when an Israelite slaughtered a ewe and her young and sacrificed them as an offering to an idol. The question would at once arise: Which penalty should be a.s.sessed, death for idolatry, or flagellation for killing the ewe and her young both on the same day? Here, the nature of the Warning would determine. If the prisoner had been told that flagellation would be the punishment, then stripes were administered. If he had been warned that death was the penalty, then capital punishment was meted out to him. If the caution had included both death and flagellation, then death would have been administered, because of the enormity of the crime of idolatry and for the reason that all lesser punishments are merged in death.

Another ill.u.s.tration of the third purpose above mentioned, that is, to enable the judges to determine the exact punishment to administer, is this: The ancient Nazarites made solemn vows of abstemiousness.[160] And when any Israelite took the Nazarite vow and violated it, he subjected himself to the penalty of flagellation if he drank a certain measure ( log) of wine. If he drank several such measures in succession, the question would arise how he was to be punished. Again, the antecedent caution would decide. If the testimony showed that he had received due warning before each drink, then he was punished for each drink separately. If he had been admonished only once, he was punished only once for the whole debauch.[161]

The enforcement of this proviso established a rule of criminal procedure peculiar to the Hebrews, and recognized by no other nation. Such a requirement seems to be utterly subversive of the celebrated maxim that has found place in every other enlightened system of law: _Ignorantia juris, quod quisque tenetur scire, neminem excusat_. Among modern civilized nations, ignorance or mistake of fact in criminal law, as well as ignorance or mistake of the meaning and effect of civil or private law, has sometimes been permitted to operate as an excuse in favor of the victim of the ignorance or mistake; but ignorance of the criminal or public law has never been permitted to be pleaded as a defense to an indictment for crime. Such a plea would threaten the very existence of the state by rendering the proof of crime and the conviction of criminals impossible.

Other reasons besides those a.s.signed above have been advanced to explain the invention of such a proviso by the Talmudists. None of them is entirely satisfactory. Rabbinowicz has urged with great force that the enactment was the offspring of a constantly increasing tendency on the part of the framers of the Talmud to mitigate the rigors of the Mosaic Code, and to abolish altogether the punishment of death by making the conviction of criminals practically impossible.[162] But this view has been ably and probably successfully combated by Benny and others. To say the least, it was a senseless provision when viewed from the standpoint of the state in maintaining order and preserving the commonwealth. The Rabbins framed several exceptions to its operation which were doubtless designed to stay the progress of certain forms of crime and to preserve the state. The false witness was excluded from the benefit of this proviso, as were also the instigator to idolatry and the burglar. The false witness was denied the benefit because of the impossibility of foreseeing that he would swear falsely and of forewarning him; the idolater was excepted because of the heinousness of the crime of idolatry under a theocratic commonwealth; and the burglar was denied the benefit of the caution for the very peculiar reason that the "breaking in," while committing the crime of burglary, was sufficient warning.[163]

Such a rule is utterly without foundation in logic or reason from the simple fact that crime in every age has been committed with every circ.u.mstance of caution and concealment that criminal ingenuity could devise; usually under the cover of night, often with a mask, frequently by the aid of accomplices to give notice of the appearance of the officers of the law, and nearly always with subsequent attempts to wipe out evidences of the commission of the offense. To require a preliminary caution, such as the Antecedent Warning of the Jews, was to handicap the state most seriously and to render almost impossible the apprehension and punishment of public malefactors.

CHAPTER V

HEBREW CRIMINAL LAW--MODE OF TRIAL AND EXECUTION IN CAPITAL CASES

The administration of Hebrew criminal law was marked by lofty conception of right and wrong, and was pervaded by a n.o.ble sentiment of justice and humanity. From the framing of the Decalogue to the latest years of Jewish nationality, each succeeding generation witnessed some humane and merciful modification of existing rules. Talmudic interpretation invented a series or collection of sayings that gave form and character to the whole body of later Hebrew law. These maxims were intended to mitigate the rigors of the Mosaic Code and to establish safeguards against negligence or injustice to the defendant in criminal trials.

Indeed, every possible precaution was taken to render impossible the wrongful conviction of an accused person. The student of Hebrew law is at times astonished by the excessive caution inculcated in criminal procedure. Certain cautionary rules are no less than pedantic, and may be justly and aptly styled Judaical. The judges leaned always to the side of the defendant and gave him the advantage of every possible doubt. They went a step farther and sought pretext after pretext that would result in an acquittal. A sense of awful responsibility weighed upon the hearts and consciences of the judges. The services of the synagogue were not conducted with deeper fervor or greater religious solemnity than were the proceedings of a capital trial in the great Judgment Hall of the Sanhedrin. Certain sacred maxims flamed forever like beacon lights along the pathway of the members of the court during the solemn deliberations. "A judge," says the Talmud, "should always consider that a sword threatens him from above, and destruction yawns at his feet." The ancient adage, "the pen of the law fears the thunder of Heaven," though of Chinese origin, is Hebraic in spirit. "Thou shalt do no unrighteousness in judgment" was the leading aphorism of Hebrew jurisprudence. Among the earliest traditions of the Fathers, we read this maxim: "When a judge decides not according to truth, he makes the majesty of G.o.d to depart from Israel. But if he judges according to the truth, were it only for one hour, it is as if he established the whole world, for it is in judgment that the divine presence in Israel has its habitation." Hebrew horror of capital punishment and dread of taking human life are well expressed in the celebrated maxim of the Mishna: "The Sanhedrin, which so often as once in seven years, condemns a man to death, is a slaughter-house."[164] And more striking and startling still is the terrible sentence of Rabbi Meir: "What doth G.o.d say (if one may speak of G.o.d after the manner of men) when a malefactor suffers the anguish due to his crime? He says, _My head and my limbs are pained_.

And if he so speaks of the suffering even of the guilty, what must he utter when the righteous is condemned?" The whole spirit of Talmudic caution is well ill.u.s.trated by the princ.i.p.al rule of the Pirke Aboth, which says: "Be cautious and slow in judgment, send forth many disciples, and _make a fence round the law_."[165]

In addition to the maxims above mentioned, which were more religious than legal, four cardinal rules of criminal procedure--"strictness in the accusation, publicity in the discussion, full freedom granted to the accused, and a.s.surance against all dangers or errors of testimony"[166]--molded the judgment and guided the consciences of Hebrew judges. These sayings of the Fathers and maxims of the law were the touchstones of all their judicial inquiries and meditations at the trial of capital cases. With prayer in their hearts and these maxims upon their lips, they applied themselves to the solemn duties of their office.

A most interesting pa.s.sage in the Mishna draws a striking contrast between capital trials and those involving questions of money only. The relevancy of the pa.s.sage to this chapter is so great that it is deemed best to quote it entire:

Money trials and trials for life have the same rule of inquiry and investigation. But they differ in procedure in the following points: The former require only three, the latter three-and-twenty judges.

In the former it matters not on which side the judges speak who give the first opinions; in the latter, those who are in favor of acquittal must speak first.

In the former, a majority of one is always enough; in the latter, a majority of one is enough to acquit, but it requires a majority of two to condemn.

In the former, a decision may be quashed on review (for error), no matter which way it has gone; in the latter, a condemnation may be quashed, but not an acquittal.

In the former, disciples of the law present in the court may speak (as a.s.sessors) on either side; in the latter, they may speak in favor of the accused, but not against him.

In the former, a judge who has indicated his opinion, no matter on which side, may change his mind; in the latter, he who has given his voice for acquittal may not change.

The former (money trials) are commenced only in the daytime, but may be concluded after nightfall; the latter (capital trials) are commenced only in the daytime, and must also be concluded during the day.

The former may be concluded by acquittal or condemnation on the day on which they have begun; the latter may be concluded on that day if there is a sentence of acquittal, but must be postponed to a second day if there is to be a condemnation. And for this reason capital trials are not held on the day before a Sabbath or a feast day.[167]

The princ.i.p.al features of a Hebrew capital trial before the Great Sanhedrin were: (1) The Morning Sacrifice; (2) the a.s.sembling of the Judges in the Lishkath haggazith, or the Hall of Hewn Stones; (3) the Examination of Witnesses; (4) the Debates and Balloting of the Judges on the guilt or the innocence of the accused. These successive steps will be briefly considered in this chapter.

_The Morning Sacrifice._--It is not positively known what legal connection, if any, the morning sacrifice had with the trial of a capital case before the Great Sanhedrin at Jerusalem. Several writers contend that there was no essential legal connection; that the sacrifice was offered at the break of day whether a capital case was to be tried or not; and that the court was not dependent upon this religious observance for jurisdiction in the trial of criminal cases. Other writers hold opposite views, and contend that the morning sacrifice was essential to give jurisdiction to the court. MM. Lemann consider it an error in the trial of Jesus that the morning sacrifice was not offered before the commencement of proceedings.[168] Certain pa.s.sages from the Mishna very strongly support this second view: that the court could not legally convene until the morning sacrifice had been offered. "The Sanhedrin sat from the close of the morning sacrifice to the time of the evening sacrifice."[169] ... "Since the morning sacrifice was offered at the break of day, it was hardly possible for the Sanhedrin to a.s.semble until an hour after that time."[170] These pa.s.sages seem to indicate that the morning sacrifice was necessary before the court could legally convene. This question will be found more fully discussed under Point V of the Brief in this volume. The method of offering the morning sacrifice was as judicial in its precision as it was religious in its solemnity.

_The a.s.sembling of the Judges._--At the close of the morning sacrifice, the members of the court entered the judgment hall in solemn procession.

They took their seats, "turbaned, on cushions or pillows, in oriental fashion, with crossed legs, and unshod feet, in a half-circle."[171] The high priest sat in the center with the other members of the court to the right and left of him. "His head was crowned with a turban of blue inwrought with gold. On his bosom hung the priestly breastplate, in which glittered twelve precious stones, emblems of the twelve tribes of Israel. A flowing robe of blue, gathered about his waist by a girdle of purple, scarlet, and gold embroidery, enveloped his person and set off the pure white linen of his capacious sleeves. The b.u.t.tons of this costly robe were onyx stones. His slippered feet were half concealed beneath the long fringe of his pontifical vestments, which were curiously embroidered with pomegranates in gold and scarlet and crimson.

No Roman Catholic pontiff ever wore robes more resplendent than those in which the high priest was attired on public and state occasions.

Immediately before him sat the scribes or clerks of the court. The one on his left hand wrote down whatever testimony was adduced against the accused; what votes were cast for his condemnation. The one on the right transcribed what appeared in his favor."[172]

According to most writers, including Dr. Lyman Abbott, only two scribes were present having seats at each end of the semicircle. According to Benny, however, "three scribes were present; one was seated on the right, one on the left, the third in the center of the hall. The first recorded the names of the judges who voted for the acquittal of the accused and the arguments upon which the acquittal was grounded. The second noted the names of such as decided to condemn the prisoner and the reasons upon which the conviction was based. The third kept an account of both the preceding, so as to be able at any time to supply omissions or check inaccuracies in the memoranda of his brother reporters."

The prisoner was placed in front of the high priest, in a conspicuous position, where he could see all and could be seen by all.

Thus organized and arranged, the Sanhedrin began the work of the day.

_Examination of Witnesses._--The examination of witnesses, who were also accusers, marked the beginning of proceedings. It is doubtful if the indictment against criminals was in writing. The first witness who was to testify was led into an adjoining room and solemnly warned. He was asked questions similar to the following: Is it not probable that your belief in the prisoner's guilt is derived from hearsay or circ.u.mstantial evidence? In forming your opinions concerning the guilt of the accused, have you or not been influenced by the remarks of persons whom you regard as reputable and trustworthy? Are you aware that you will be submitted to a most searching examination? Are you acquainted with the penalty attached to the crime of perjury?

After this preliminary warning, conveyed in these questions, had been given, the most learned and venerable of the judges administered to the witness the following impressive adjuration:

Forget not, O witness, that it is one thing to give evidence in a trial as to money, and another in a trial for life. In a money suit, if thy witness-bearing shall do wrong, money may repair that wrong. But in this trial for life, if thou sinnest, the blood of the accused, and the blood of his seed to the end of time, shall be imputed unto thee.... Therefore was Adam created one man and alone, to teach thee that if any witness shall destroy one soul out of Israel, he is held by the Scripture to be as if he had destroyed the world; and he who saves one such soul to be as if he had saved the world.... For a man from one signet-ring may strike off many impressions, and all of them shall be exactly alike. But He, the King of the kings of kings, He the Holy and the Blessed, has struck off from His type of the first man the forms of all men that shall live; yet so, that no one human being is wholly alike to any other.

Wherefore let us think and believe that the whole world is created for a man such as he whose life hangs on thy words. But these ideas must not deter you from testifying from what you actually know.

Scripture declares: "The witness who hath seen or known, and doth not tell, shall bear his iniquity." Nor must ye scruple about becoming the instrument of the alleged criminal's death. Remember the Scriptural maxim: "In the destruction of the wicked, there is joy."

At the close of this solemn exhortation, the examination of the witness commenced. The Hakiroth, seven questions prescribed by law, touching the ident.i.ty of the prisoner and fixing the elements of time and place, were asked. They were as follows: Was it during a year of jubilee? Was it an ordinary year? In what month? On what day of the month? At what hour?