HEBREW CRIMINAL LAW--MOSAIC AND TALMUDIC

The Pentateuch and the Talmud form the double basis of Hebrew jurisprudence. "The wisdom of the lawgiver," says Bacon, "consists not only in a platform of justice, but in the application thereof." The Mosaic Code, embodied in the Pentateuch, furnished to the children of Israel the necessary platform of justice; ancient tradition and Rabbinic interpretation contained in the Talmud, supplied needed rules of practical application. Employing cla.s.sic terminology, it may be said that the ordinances of Moses were the substantive and the provisions of the Talmud were the adjective laws of the ancient Hebrews. These terms are not strictly accurate, however, since many absolute rights are declared and defined in the Talmud as well as in the Pentateuch. Another definition, following the cla.s.sification of Roman legists, describes Mosaic injunction as the _lex scripta_ and Talmudic provision as the _lex non scripta_ of the Commonwealth of Israel. In other words, the Pentateuch was the foundation, the cornerstone; the Talmud was the superstructure, the gilded dome of the great temple of Hebrew justice.

Bible students throughout the world are familiar with the provisions of the Mosaic Code; but the contents of the Talmud are known to few, even among scholars and literary men. The most appalling ignorance has existed in every age among the Gentile uninitiated as to the nature and ident.i.ty of this gigantic literary compilation. Henricus Segnensis, a pious monk of the Middle Ages, having heard and read many things about the despised heretical Talmud, conceived it to be a person and, in a transport of religious frenzy, declared that he would sooner or later have _him, the Talmud_, put to death by the hangman![48]

For the benefit of the average reader as well as to illuminate the general subject, a short description of the Talmud will be given.

_Definition._--Many attempts have been made to define the Talmud, but all definition of this monumental literary production is necessarily inaccurate and incomplete because of the vastness and peculiarity of the matter treated. To describe it as an encyclopedia of the life and literature, law and religion, art and science of the Hebrew people during a thousand years would convey only an approximately correct idea of its true meaning, for it is even more than the foregoing descriptive terms would indicate. Emanuel Deutsch in his brilliant essay on the Talmud defines it as "a Corpus Juris, an encyclopedia of law, civil and penal, ecclesiastical and international, human and divine. It is a microcosm, embracing, even as does the Bible, heaven and earth. It is as if all the prose and poetry, the science, the faith and speculation of the Old World were, though only in faint reflections, bound up in it _in nuce_."

Benny describes it as "the Talmud--that much maligned and even more misunderstood compilation of the rabbins; that digest of what Carlyle would term _allerlei-wissenschaften_; which is at once the compendium of their literature, the storehouse of their tradition, the exponent of their faith, the record of their acquirements, the handbook of their ceremonials and the summary of their legal code, civil and penal."

To speak of the Talmud as a book would be inaccurate. It is a small library, or collection of books. "Modern editions of the Talmud, including the most important commentaries, consist of about 3,000 folio sheets, or 12,000 folio pages of closely printed matter, generally divided into twelve or twenty volumes. One page of Talmudic Hebrew intelligibly translated into English would cover three pages; the translation of the whole Talmud with its commentaries would accordingly make a library of 400 volumes, each numbering 360 octavo pages."[49]

It would be well to bear in mind that the contents of the Talmud were not proclaimed to the world by any executive, legislative, or judicial body; that they were not the result of any resolution or mandate of any congregation, college, or Sanhedrin; that they were not, in any case, formal or statutory. They were simply a great ma.s.s of traditionary matter and commentary transmitted orally through many centuries before being finally reduced to writing. Rabbinism claims for these traditions a remote antiquity, declaring them to be coeval with the proclamation of the Decalogue. Many learned doctors among the Jews ascribe this antiquity to the whole ma.s.s of traditional laws. Others maintain that only the principles upon which Rabbinic interpretation and discussion are based, can be traced back so far. But it is certain that distinct traditions are to be found at a very early period in the history of the children of Israel, and that on their return from Babylonian captivity these traditions were delivered to them by Ezra and his coadjutors of the Great a.s.sembly.

This development of Hebrew jurisprudence along lines of written and oral law, Pentateuch and Talmud, Mosaic ordinance and time-honored tradition, seems to have followed in obedience to a general principle of juristic growth. _Lex scripta_ and _lex non scripta_ are cla.s.sical Roman terms of universal application in systems of enlightened jurisprudence. A charter, a parchment, a marble column, a table of stone, a sacred book, containing written maxims defining legal rights and wrongs are the beginnings of all civilized schemes of justice. Around these written, fundamental laws grow and cl.u.s.ter the race traditions of a people which attach themselves to and become inseparable from the prime organic structure. These oral traditions are the natural and necessary products of a nation's growth and progress. The laws of the Medes and Persians, at once unalterable and irrevocable, represent a strange and painful anomaly in the jurisprudence of mankind. No written const.i.tution, incapable of amendment and subject to strict construction, can long survive the growth and expansion of a great and progressive people. The ever-changing, perpetually evolving forms of social, commercial, political, and religious life of a restless, marching, ambitious race, necessitate corresponding changes and evolutions in laws and const.i.tutions. These necessary legal supplements are as varied in origin as are the nations that produce them. Magna Charta, wrung from John at Runnymede, became the written basis of English law and freedom, and around it grew up those customs and traditions that--born on the sh.o.r.es of the German Ocean, transplanted to the Isles of Britain, nurtured and developed through a thousand years of judicial interpretation and application--became the great basic structure of the Common Law of England.

What the Mosaic Code was to the ancient Hebrews, what Magna Charta is to Englishmen, the Koran is to Mahometans: the written charter of their faith and law. Surrounding the Koran are many volumes of tradition, made up of the sayings of Mahomet, which are regarded as equally sacred and authoritative as the Koran itself. These volumes of Mahometan tradition are called the Sonna and correspond to the Talmud of the Hebrews. An a.n.a.lysis of any great system of jurisprudence will reveal the same natural arrangement of written and oral law as that represented by the Pentateuch and the Talmud of the Jews.

The word "Talmud" has various meanings, as it appears in Hebrew traditional literature. It is an old scholastic term, and "is a noun formed from the verb 'limmed'='to teach.' It therefore means, primarily, 'teaching,' although it denotes also 'learning'; it is employed in this latter sense with special reference to the Torah, the terms 'Talmud' and 'Torah' being usually combined to indicate the study of the Law, both in its wider and its more restricted sense."[50] It is thus frequently used in the sense of the word "exegesis," meaning Biblical exposition or interpretation. But with the etymological and restricted, we are not so much interested as with the popular and general signification of the term "Talmud." Popularly used, it means simply a small collection of books represented by two distinct editions handed down to posterity by the Palestinian and Babylonian schools during the early centuries of the Christian era.

_Divisions of the Talmud._--The Talmud is divided into two component parts: the Mishna, which may be described as the _text_; and the Gemara, which may be termed the _commentary_.[51] The Mishna, meaning tradition, is almost wholly law. It was, indeed, of old, translated as the Second or Oral Law--the [Greek: deuterosis]--to distinguish it from the Written Law delivered by G.o.d to Moses. The relationship between the Mishna, meaning oral law, and the Gemara, meaning commentary, may be ill.u.s.trated by a bill introduced into Congress and the debates which follow. In a general way, the bill corresponds to the Mishna, and the debates to the Gemara. The distinction, however, is that the law resulting from the pa.s.sage of the bill is the effect and culmination of the debate; while the Mishna was already law when the Gemara or commentary was made.

As we have seen above, Hebrew jurisprudence in its principles and in the manner of their interpretation was chiefly transmitted by the living voice of tradition. These laws were easily and safely handed down from father to son through successive generations as long as Jewish nationality continued and the Temple at Jerusalem still stood. But, with the destruction of the Temple and the banishment of the Jews from Palestine (A.D. 70), the danger became imminent that in the loss of their nationality would also be buried the remembrance of their laws.

Moved with pity and compa.s.sion for the sad condition of his people, Judah the Holy, called Rabbi for preeminence, resolved to collect and perpetuate for them in writing their time-honored traditions. His work received the name Mishna, the same which we have discussed above. But it must not be imagined that this work was the sudden or exclusive effort of Rabbi Judah. His achievement was merely the sum total and culmination of the labors of a long line of celebrated Hebrew sages. "The Oral Law had been recognized by Ezra; had become important in the days of the Maccabees; had been supported by Pharisaism; narrowed by the school of Shammai, codified by the school of Hillel, systematized by R. Akiba, placed on a logical basis by R. Ishmael, exegetically amplified by R.

Eliezer, and constantly enriched by successive rabbis and their schools. Rabbi Judah put the coping-stone to the immense structure."[52]

Emanuel Deutsch gives the following subdivisions of the Mishna:

The Mishna is divided into six sections. These are subdivided again into 11, 12, 7, 9 (or 10), 11, and 12 chapters, respectively, which are further broken up into 524 paragraphs. We shall briefly describe their contents:

Section I. Seeds: of Agrarian Laws, commencing with a chapter on Prayers. In this section, the various t.i.thes and donations due to the Priests, the Levites, and the poor, from the products of the lands, and further the Sabbatical year and the prohibited mixtures in plants, animals, garments, are treated of.

Section II. Feasts: of Sabbaths, Feast, and Fast days, the work prohibited, the ceremonies ordained, the sacrifices to be offered, on them. Special chapters are devoted to the Feast of the Exodus from Egypt, to the New Year's Day, to the Day of Atonement (one of the most impressive portions of the whole book), to the Feast of Tabernacles and to that of Haman.

Section III. Women: of betrothal, marriage, divorce, etc., also of vows.

Section IV. Damages: including a great part of the civil and criminal law. It treats of the law of trover, of buying and selling, and the ordinary monetary transactions. Further, of the greatest crime known to the law, viz., idolatry. Next of witnesses, of oaths, of legal punishments, and of the Sanhedrin itself. This section concludes with the so-called "Sentences of the Fathers,"

containing some of the sublimest ethical dicta known in the history of religious philosophy.

Section V. Sacred Things: of sacrifices, the first-born, etc.; also of the measurements of the Temple (Middoth).

Section VI. Purifications: of the various levitical and other hygienic laws, of impure things and persons, their purification, etc.[53]

_Recensions._--The Talmud exists in two recensions: the Jerusalem and the Babylonian. These two editions represent a double Gemara; the first (Jerusalem) being an expression of the schools in Palestine and redacted at Tiberias about 390 A.D.; the second (Babylonian) being an expression of the schools in Babylonia and redacted about 365-427 A.D.

The Mishna, having been formed into a code, became in its turn what the Pentateuch had been before it, a basis of discussion and development.

The Gemara of the Jerusalem Talmud embodies the critical discussions and disquisitions on the Mishna by hundreds of learned doctors who lived in Palestine, chiefly in Galilee, from the end of the second till about the middle of the fifth century of the Christian era. The Gemara of the Babylonian Talmud embodies the criticisms and dissertations on the same Mishna of numerous learned doctors living in various places in Babylonia, but chiefly those of the two great schools of Sura and Pumbaditha.[54] The Babylonian Talmud is written in "West Aramaean," is the product of six or seven generations of constant development, and is about four times as large as that of the Jerusalem Talmud, which is written in "East Aramaean."[55] It should be kept clearly before the mind that the only difference between these two recensions is in the matter of commentary. The two sets of doctors whose different commentaries distinguish the two Talmuds dealt with the same Mishna as a basis of criticism. But decided differences are noticeable in the subject matter and style of the two Gemaras represented by the two recensions of the Talmud. The discussions and commentaries in the Jerusalem Talmud are simple, brief, and pointed; while those of the Babylonian Talmud are generally subtle, abstruse, and prolix. The dissertations in the Jerusalem Talmud are filled to overflowing with archaeology, geography, and history, while the Babylonian Talmud is more marked by legal and religious development.

But the reader should not form a wrong impression of the contents of the Talmud. They are a blending of the oral law of the Mishna and the notes and comments of the sages. The characteristics of both the editions are legal and religious, but a mult.i.tude of references are made in each to things that have no connection with either religion or law. "The Talmud does, indeed, offer us a perfect picture of the cosmopolitanism and luxury of those final days of Rome, such as but few cla.s.sical or postcla.s.sical writings contain. We find mention made of Spanish fish, of Cretan apples, Bithynian cheese, Egyptian lentils and beans, Greek and Egyptian pumpkins, Italian wine, Median beer, Egyptian Zyphus; garments imported from Pelusium and India, shirts from Cilicia, and veils from Arabia. To the Arabic, Persian, and Indian materials contained, in addition to these, in the Gemara, a bare allusion may suffice. So much we venture to predict, that when once archaeological and linguistic science shall turn to this field, they will not leave it again soon."

_Relation of Talmud to Mishna._--The relation of the Talmud, used in the popular sense, to the Mishna, raises the question of the relation of the whole to one of its parts. The varying meanings of Mishna, Gemara, and Talmud very easily confuse the ordinary reader. If these terms are considered separately in the order in which they appear in the preceding sentence, simple mathematical addition will greatly aid in elucidating matters. The Mishna is a vast ma.s.s of tradition or oral law which was finally reduced to writing about the close of the second century of the Christian era. The Gemara is the Rabbinical exposition of the meaning of the Mishna. The Talmud is the sum of the Mishna plus the Gemara. In other words, the Talmud is the elaboration or amplification of the Mishna by manifold commentaries, designated as the Gemara. It frequently happens that the Talmud and the Mishna appear in the same sentence as terms designating entirely different things. This a.s.sociation in a different sense inevitably breeds confusion, unless we pause to consider that the Mishna has a separate existence from the Talmud and a distinct recension of its own. In this state it is simply a naked code of laws.

But when the Gemara has been added to it the Talmud is the result, which, in its turn, becomes a distinct ent.i.ty and may be referred to as such in the same sentence with the Mishna.

_Relation of Talmud to Pentateuch._--As before suggested, the Pentateuch, or Mosaic Code, was the Written Law and the very foundation of ancient Hebrew jurisprudence. The Talmud, composed of the Mishna, i.e., Tradition, and the Gemara, i.e., Commentary, was the Oral Law, connected with, derived from, and built upon the Written Law. It must be remembered that the commonwealth of the Jews was a pure theocracy and that all law as well as all religion emanated directly or indirectly from Jehovah. This was as true of Talmudic tradition as of Mosaic ordinance. Hillel, who interpreted tradition, was as much inspired of G.o.d as was Moses when he received the Written Law on Sinai. Emanuel Deutsch is of the opinion that from the very beginning of the Mosaic law there must have existed a number of corollary laws which were used to interpret and explain the written rules; that, besides, there were certain enactments of the primitive Council of the Desert, and certain verdicts issued by the later "judges within the gates"--all of which entered into the general body of the Oral Law and were transmitted side by side with the Written Law through the ages.[56] The fourth book of Ezra, as well as other Apocryphal writings, together with Philo and certain of the Church Fathers, tells us of great numbers of books that were given to Moses at the same time that he received the Pentateuch.

These writings are doubtless the source of the popular belief among the Jews that the traditional laws of the Mishna had existed from time immemorial and were of divine origin. "Jewish tradition traces the bulk of the oral injunctions, through a chain of distinctly named authorities, to 'Sinai itself.' It mentions in detail how Moses communicated those minutiae of his legislation, in which he had been instructed during the mysterious forty days and nights on the Mount, to the chosen guides of the people, in such a manner that they should forever remain engraven on the tablets of their hearts."[57] This direct descent of the Oral Law from the Sacred Mount itself would indicate an independent character and authority. Nevertheless, Talmudic interpretation of tradition professed to remain always subject to the Mosaic Code; to be built upon, and to derive its highest inspiration from it. But, as a matter of fact, while claiming theoretically to be subordinate to it, the Talmud finally superseded and virtually displaced the Pentateuch as a legal and administrative code. This was the inevitable consequence and effect of the laws of growth and progress in national existence. Altered conditions of life, at home and in exile, necessitated new rules of action in the government of the Jewish commonwealth. The Mosaic Code was found inadequate to the ever-changing exigencies of Hebrew life. As a matter of fact, Moses laid down only general principles for the guidance of Hebrew judges. He furnished the body of the law, but a system of legal procedure was wholly wanting. The Talmud supplied the deficiency and completed a perfect whole. While yet in the Wilderness, Moses commanded the Israelites to establish courts and appoint judges for the administration of justice as soon as they were settled in Palestine.[58] This clearly indicates that the great lawgiver did not intend his ordinances and injunctions to be final and exclusive. Having furnished a foundation for the scheme, he antic.i.p.ated that the piety, judgment, and learning of subsequent ages would do the rest. His expectations were fulfilled in the development of the traditions afterwards embodied in the Mishna, which is the princ.i.p.al component part of the Talmud.

As before suggested, with the growth in population and the ever-increasing complications in social, political, and religious life, and with the general advance in Hebrew civilization, Mosaic injunction began to prove entirely inadequate to the national wants. In the time intervening between the destruction of the first and second Temples, a number of Mosaic laws had become utter anachronisms; others were perfectly impracticable, and several were no longer even understood. The exigencies of an altered mode of life and the changed conditions and circ.u.mstances of the people rendered imperative the enactment of new laws unknown to the Pentateuch. But the divine origin of the Hebrew system of law was never for a moment forgotten, whatever the change and wherever made. The Rabbins never formally repealed or abolished any Mosaic enactment. They simply declared that it had fallen into desuetude. And, in devising new laws rendered necessary by changed conditions of life they invariably invoked some principle or interpretation of the Written Law.

In the declining years of Jewish nationality, many characteristic laws of the Pentateuch had become obsolete. The ordinance which determined the punishment of a stubborn and rebellious son; the enactment which commanded the destruction of a city given to idolatry; and, above all, the _lex talionis_ had become purely matters of legend. On the other hand, many new laws appear in the Talmud of which no trace whatever can be discovered in the Pentateuch. "The Pharisees," says Josephus, "have imposed upon the people many laws taken from the tradition of the Fathers, which are not written in the law of Moses."[59] The most significant of these is the one providing for Antecedent Warning in criminal prosecutions, the meaning and purpose of which will be fully discussed in another chapter.

_Vicissitudes of the Talmud._--An old Latin adage runs: "Habent sua fata libelli."[60] (Even books are victims of fate). This saying is peculiarly applicable to the Talmud, which has had, in a general way, the same fateful history as the race that created it. Proscription, exile, imprisonment, confiscation, and burning was its lot throughout the Middle Ages. During a thousand years, popes and kings vied with each other in p.r.o.nouncing edicts and hurling anathemas against it. During the latter half of the sixteenth century it was burned not fewer than six different times by royal or papal decree. Whole wagonloads were consigned to the flames at a single burning. In 1286, in a letter to the Archbishop of Canterbury, Honorius IV described the Talmud as a "d.a.m.nable book" (liber d.a.m.nabilis), and vehemently urged that n.o.body in England be permitted to read it, since "all other evils flow out of it."[61] On New Year's day, 1553, numerous copies of the Talmud were burned at Rome in compliance with a decree of the Inquisition. And, as late as 1757, in Poland, Bishop Dembowski, at the instigation of the Frankists, convened a public a.s.sembly at Kamenetz-Podolsk, which decreed that all copies of the Talmud found in the bishopric should be confiscated and burned by the hangman.[62]

Of the two recensions, the Babylonian Talmud bore the brunt of persecution during all the ages. This resulted from the fact that the Jerusalem Talmud was little read after the closing of the Jewish academies in Palestine, while the Babylonian Talmud was the popular edition of eminent Jewish scholars throughout the world.

It is needless to say that the treatment accorded the venerable literary compilation was due to bitter prejudice and cra.s.s ignorance. This is well ill.u.s.trated by the circ.u.mstance that when, in 1307, Clement V was asked to issue a bull against the Talmud, he declined to do so, until he had learned something about it. To his amazement and chagrin, he could find no one who could throw any light upon the subject. Those who wished it condemned and burned were totally ignorant of its meaning and contents. The surprise and disgust of Clement were so great that he resolved to found three chairs in Hebrew, Arabic, and Chaldee, the three tongues nearest the idiom of the Talmud. He designated the Universities of Paris, Salamanca, Bologna, and Oxford as places where these languages should be taught, and expressed the hope that, in time, one of these universities might be able to produce a translation of "this mysterious book."[63] It may be added that these plans of the Pope were never consummated.

_The Message and Mission of the Talmud._--To appreciate the message and mission of the Talmud, its contents must be viewed and contemplated in the light of both literature and history. As a literary production it is a masterpiece--strange, weird, and unique--but a masterpiece, nevertheless. It is a sort of spiritual and intellectual cosmos in which the brain growth and soul burst of a great race found expression during a thousand years. As an encyclopedia of faith and scholarship it reveals the n.o.blest thoughts and highest aspirations of a divinely commissioned race. Whatever the master spirits of Judaism in Palestine and Babylon esteemed worthy of thought and devotion was devoted to its pages. It thus became a great twin messenger, with the Bible, of Hebrew civilization to all the races of mankind and to all the centuries yet to come. To Hebrews it is still the great storehouse of information touching the legal, political, and religious traditions of their fathers in many lands and ages. To the Biblical critic of any faith it is an invaluable help to Bible exegesis. And to all the world who care for the sacred and the solemn it is a priceless literary treasure.

As an historical factor the Talmud has only remotely affected the great currents of Gentile history. But to Judaism it has been the cementing bond in every time of persecution and threatened dissolution. It was carried from Babylon to Egypt, northern Africa, Spain, Italy, France, Germany, and Poland. And when threatened with national and race destruction, the children of Abraham in every land bowed themselves above its sacred pages and caught therefrom inspiration to renewed life and higher effort. The Hebrews of every age have held the Talmud in extravagant reverence as the greatest sacred heirloom of their race.

Their supreme affection for it has placed it above even the Bible. It is an adage with them that, "The Bible is salt, the Mischna pepper, the Gemara balmy spice," and Rabbi Solomon ben Joseph sings:

"The Kabbala and Talmud h.o.a.r Than all the Prophets prize I more; For water is all Bible lore, But Mischna is pure wine."

More than any other human agency has the Talmud been instrumental in creating that strangest of all political phenomena--a nation without a country, a race without a fatherland.

CHAPTER II

HEBREW CRIMINAL LAW--CRIMES AND PUNISHMENTS

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

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

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

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

_Beheading_ was the punishment for only two crimes:

(1) Murder.

(2) Communal apostasy from Judaism to idolatry.