Part 9 — Analysis Of The Chapter Of Mr. Salvador, Entitled “The Administration Of Justice” Among The Jews.398

Analysis Of The Chapter Of Mr. Salvador, Entitled “The Administration Of Justice” Among The Jews.398

Mr. Salvador has discussed with particular care whatever relates to the administration of justice among the Jewish people. We shall dwell upon this chapter, which undoubtedly will most interest our readers.

Judicare and judicari, to judge and to be judged, express the rights of every Hebrew citizen; that is, no one could be condemned without a judgment, and every one might, in his turn, be called upon to sit in judgment upon others. Some exceptions to this principle are explained; but they do not affect the rule. In matters of mere interest each party chose a judge, and these two chose a third person. If a discussion arose as to the interpretation of a law, they carried it to the lower council of Elders, and from thence to the Great council at Jerusalem. Each town of more than one hundred and twenty families was to have its lower council, consisting of twenty-three members; and these had jurisdiction in criminal cases.

The expressions, he shall die, he shall be cut off from the people, which are so often used in the Mosaic law, embrace three very different significations, which we are accustomed to confound. They indicate the suffering of death as a punishment, civil death, and that premature death, with which an individual is naturally threatened, who departs from those rules which are useful to the nation and to the individual himself. Civil death is the last degree of separation, or excommunication; it is pronounced, as a judicial punishment, by the assembly of the judges.

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There were three kinds of separation; which Mr. Salvador compares to the three degrees of civil excommunication provided for in the French Penal Code, and which condemn the criminal to hard labour either for life or for a term of years, or to certain correctional punishments. But the Hebrew excommunication had this advantage, that the party never lost all hope of regaining his original standing.

The Hebrew lawyers, in relation to the punishment of death, maintained opinions, which deserve to be quoted:—

“A tribunal, which condemns to death once in seven years, may be called sanguinary.”—“It deserves this appellation, says doctor Eliezer, when it pronounces a like sentence once in seventy years.”—“If we had been members of the high court, say the doctors Tyrphon and Akiba, we should never have condemned a man to death.” Simeon, the son of Gamaliel, replied—“Would not that be an abuse? Would you not have been afraid of multiplying crimes in Israel?” Mr. Salvador answers—“No, certainly; far from lessening their number, the severity of the punishment increases it, by giving a more resolute character to the men who are able to brave it; and, at the present day, how many intelligent minds range themselves on the side of Akiba and Tyrphon! How many consciences refuse to participate, in any manner, in the death of a man! The flowing of blood, the multitude excited by an unbecoming curiosity, the victim dragged in triumph to the horrible altar, the impossibility of repairing a mistake, (from which human wisdom is never exempt), the dread of one day seeing a departed shade rising up and saying, ‘I was innocent,’ the facility which modern nations have of expelling from among them the man whose presence pollutes them—the influence of general depravity on the production of crimes—and finally the absurd contrast of the whole of society, while in possession of strength, intelligence, and arms, opposing itself to an individual wretch (who has been drawn on by want, by passion, or by ignorance) and yet finding no other means of redress than by exceeding him in cruelty—all these things, and many others, have so deeply penetrated the minds of all ranks of people, that there will one day proceed from them the most striking proof of the power of morals over [pg 537] the laws; for the law will be changed by the simple fact, that we shall not find any person who will consent to apply it.”

I feel honoured in having maintained the same opinion in my Observations on Criminal Legislation; but I solicit those, who wish to see this question discussed in its whole extent, to read the profound reflections which the Duke de Broglie has just published on the subject, in the last number of the Revue Française (for October, 1828.)

The whole criminal procedure in the Pentateuch rests upon three principles, which may be thus expressed; publicity of the trial, entire liberty of defence allowed to the accused; and a guaranty against the dangers of testimony. According to the Hebrew text one witness is no witness; there must be at least two or three who know the fact. The witness, who testifies against a man, must swear that he speaks the truth; the judges then proceed to take exact information of the matter; and, if it is found that the witness has sworn falsely, they compel him to undergo the punishment to which he would have exposed his neighbour. The discussion between the accuser and the accused is conducted before the whole assembly of the people. When a man is condemned to death, those witnesses whose evidence decided the sentence inflict the first blows, in order to add the last degree of certainty to their evidence. Hence the expression—Let him among you, who is without sin, cast the first stone.

If we pursue their application of these fundamental rules in practice, we shall find that a trial proceeded in the following manner.

On the day of the trial, the executive officers of justice caused the accused person to make his appearance. At the feet of the Elders were placed men who, under the name of auditors, or candidates, followed regularly the sittings of the Council. The papers in the case were read; and the witnesses were called in succession. The president addressed this exhortation to each of them: “It is not conjectures, or whatever public rumour has brought to thee, that we ask of thee; consider that a great responsibility rests upon thee: that we are not occupied by an affair, like a case of pecuniary interest, in which the injury may be repaired. If thou causest the condemnation of a person unjustly [pg 538] accused, his blood, and the blood of all the posterity of him, of whom thou wilt have deprived the earth, will fall upon thee; God will demand of thee an account, as he demanded of Cain an account of the blood of Abel. Speak.”

A woman could not be a witness, because she would not have the courage to give the first blow to the condemned person; nor could a child, that is irresponsible, nor a slave, nor a man of bad character, nor one whose infirmities prevent the full enjoyment of his physical and moral faculties. The simple confession of an individual against himself, or the declaration of a prophet, however renowned, would not decide a condemnation. The Doctors say—“We hold it as fundamental, that no one shall prejudice himself. If a man accuses himself before a tribunal, we must not believe him, unless the fact is attested by two other witnesses; and it is proper to remark, that the punishment of death inflicted upon Achan, in the time of Joshua399 was an exception, occasioned by the nature of the circumstances; for our law does not condemn upon the simple confession of the accused, nor upon the declaration of one prophet alone.”

The witnesses were to attest to the identity of the party, and to depose to the month, day, hour, and circumstances of the crime. After an examination of the proofs, those judges who believed the party innocent stated their reasons; those who believed him guilty spoke afterwards, and with the greatest moderation. If one of the auditors, or candidates, was entrusted by the accused with his defence, or if he wished in his own name to present any elucidations in favour of innocence, he was admitted to the seat, from which he addressed the judges and the people. But this liberty was not granted to him, if his opinion was in favour of condemning. Lastly; when the accused person himself wished to speak, they gave the most profound attention. When the discussion was finished, one of the judges recapitulated the case; they removed all the spectators; two scribes took down the votes of the judges; one of them noted those which were in favour of the accused, and the other, those which condemned him. Eleven votes, out of twenty-three, were sufficient to acquit; but it required thirteen to convict. If any [pg 539] of the judges stated that they were not sufficiently informed, there were added two more Elders, and then two others in succession, till they formed a council of sixty-two, which was the number of the Grand Council. If a majority of votes acquitted, the accused was discharged instantly; if he was to be punished, the judges postponed pronouncing sentence till the third day; during the intermediate day they could not be occupied with anything but the cause, and they abstained from eating freely, and from wine, liquors, and everything which might render their minds less capable of reflection.

On the morning of the third day they returned to the judgment seat. Each judge, who had not changed his opinion, said, I continue of the same opinion and condemn; any one, who at first condemned, might at this sitting acquit; but he who had once acquitted was not allowed to condemn. If a majority condemned, two magistrates immediately accompanied the condemned person to the place of punishment. The Elders did not descend from their seats; they placed at the entrance of the judgment hall an officer of justice with a small flag in his hand; a second officer, on horseback, followed the prisoner, and constantly kept looking back to the place of departure. During this interval, if any person came to announce to the Elders any new evidence favourable to the prisoner, the first officer waved his flag, and the second one, as soon as he perceived it, brought back the prisoner. If the prisoner declared to the magistrates, that he recollected some reasons which had escaped him, they brought him before the judges no less than five times. If no incident occurred, the procession advanced slowly, preceded by a herald who, in a loud voice, addressed the people thus: “This man (stating his name and surname) is led to punishment for such a crime; the witnesses who have sworn against him are such and such persons; if any one has evidence to give in his favour, let him come forth quickly.”

It was in consequence of this rule that the youthful Daniel caused the procession to go back, which was leading Susanna to punishment, and he himself ascended the seat of justice to put some new questions to the witnesses.

At some distance from the place of punishment, they urged [pg 540] the prisoner to confess his crime, and they made him drink a stupefying beverage, in order to render the approach of death less terrible.400

By this mere analysis of a part of Mr. Salvador's work we may judge of the extreme interest of the whole. His principal object has been, to make apparent the mutual aids which history, philosophy, and legislation afford in explaining the institutions of the Jewish people. His book is a scientific work, and at the same time a work of taste. His notes indicate vast reading; and in the choice of his citations he gives proofs of his critical skill and discrimination. Mr. Salvador belongs, by his age, to that new generation, which is distinguished as much by its application to solid studies, as by elevation and generosity of sentiment.

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