Post-Talmudic Development
Reading edition
A few words should be added relative to the development of the idea of capital punishment among the medieval Jews.
In post-Talmudic times, the problem of capital punishment according to Jewish law scarcely arose. Although the theory of it had been fully worked out, there were no occasions for the application of the theory, both because the Temple no longer stood and the Jewish courts had no jurisdiction,[224] and because after the interruption of Semicha (ordination), no judges were regarded as competent.[225] This statement is true, however, only with certain limitations. Although as a general rule the Jewish courts in the diaspora had no jurisdiction in capital cases, there were times and places in which the power of imposing the death penalty was vested in the Jewish courts. Thus Asheri (c. 1300) wrote: “In no country of which I have heard have Jews their own courts for the trial of criminal cases except here in Spain. It was a source of great astonishment to me when I came to Spain, that the Spanish Jews should try criminal cases without the full and authorized Sanhedrin; but I was informed that this was done in accordance with an order of the government.”[226] Similarly, we find the Jews of Tudela asking the viceroy of Navarre, “That he would be pleased to order and that we practise the Jewish law as our ancestors have hitherto; that is, when a Jew or Jewess commits a sin, on our magistrates applying to the bailiff and notifying to him the sin committed, and the punishment it deserved according to Jewish law, the bailiff shall execute it, and enforce the sentence of our said magistrates, whether of condemnation or acquittal; or of any demand from one Jew to another, as we have been accustomed, not affecting the rights of our lord the king.” This right was granted them.[227]
Asheri himself unhesitatingly imposed the sentence of death on an informer.[228] The Moser (informer, delator), constituted so poignant a danger to Jewry in exile, that the death penalty was not infrequently consummated in his case. Jewish law gives the right to kill the informer, on the principle of life for life. Since he is seeking your life, you are justified in saving your own by taking his.[229] The death sentence on the Moser was pronounced by the Jewish community and carried out by the non-Jewish authorities to whom the convicted delator was handed over. Maimonides (12th cent.) declares that it regularly happens in the cities of the West that they kill informers, or hand them over to the non-Jews to be killed or dealt with according to their guilt.[230]
Similarly, Asheri’s son, Jacob, in conjunction with a tribunal of Rabbis in Toledo, condemned to death the informer Joseph ben Samuel and handed him over to the royal executioner.[231] Joseph ibn Migas of Lucena (d. 1141) caused an informer to be stoned on the eve of the day of Atonement.[232] Others, who approved of the extermination of informers, or who actually passed the sentence of death on them and handed them over to the State authorities for execution, were such leaders of Spanish and North African Jewry as Jonah Gerondi and Solomon ben Adereth (c. 1280),[233] Isaac ben Shesheth (14th cent.), Abraham Benveniste (1432), Simon ben Zemach Duran (1400), and his son Solomon. In the particular case in which Jonah Gerondi and Solomon ben Adereth acted as the judges (c. 1280), the family of the informer tried in vain to stir up the non-Jewish authorities by declaring that a judicial murder had been committed. They claimed that according to Jewish law, the Jews had long foregone the right of imposing a capital sentence, that the sentence had not been pronounced by a Sanhedrin of twenty-three, etc. The authorities refused them a hearing. But Solomon ben Adereth found it necessary to justify the action that had been taken. He therefore submitted the case in all its details to the Rabbis of North France. Only one answer has been preserved,—that of Rabbi Meir of Rothenburg, who clearly and decidedly ranks himself on the side of Ben Adereth.[234] But it will be seen that in all these cases, the utmost power that was allowed to the Jewish tribunal was that of pronouncing the sentence of death. The consummation of the sentence was left to the State authorities. On Aug. 21, 1379, at the request of a delegation of Jews, the royal farmer of taxes, Joseph Pichon, was beheaded as an informer by the royal executioner. One result of this affair was, that the Cortes issued the following decree, depriving the Rabbis and the Jewish courts of the country of the right of deciding criminal cases: “We ordain and command, that henceforward it shall not be permitted for any Jews of our kingdoms, whether rabbis, elders, chiefs or any other persons that now are or shall be hereafter, to interfere to judge in any criminal cause to which death, loss of limb or banishment is attached; but they may decide all civil causes that appertain to them according to their religion. Criminal cases shall be tried by one of the Alcaldes, chosen by the Jews in the towns and places of their respective jurisdictions.... This is to be understood for those criminal cases that have hitherto been tried by the said Jews”....[235] Subsequently, owing to the influence of Abraham Benveniste, this right of judging criminal cases was restored to the Jewish courts in Spain.
But this power could hardly be exercised outside of Spain and North Africa, and in those lands it could be exercised only in favorable periods. In Angevin England, “Criminal cases between Jews, except for the greater felonies, as homicide, mayhem, etc., could be decided in the Jewish courts according to Jewish law.”[236] In other lands also, the Jewish courts were sometimes empowered to try lesser criminal cases; but rarely, if ever, could they independently impose and carry out the death sentence. At a later period, the Kahals in Eastern Europe were granted autonomous jurisdiction in civil cases. But their greatest power hardly exceeded the right given them in Lithuania by charter of King Michael Wishnevetzki (1669-73), “to summon the criminals before the Jewish courts for punishment and exclusion from the community when necessary.” Rabbi Meir Sack emphatically protested against buying the freedom of Jewish criminals from the authorities. “We should endeavor to deprive criminals of opportunities to escape justice.” Similarly, Meir Lublin declares that the death penalty for a murderer, decreed by the law of the land, should be allowed to be consummated, if the murderer were a Jew.[237]
It may be stated broadly, that after the Roman period, the right of pronouncing the death sentence was only rarely granted to the Jews, while the right of inflicting capital punishment was practically never vested in the Jewish community. Theoretically, Jewish legal opinion gave to the leading authorities of the generation or of the district, the right to act as a competent Sanhedrin of twenty-three in judging criminal and capital cases, on urgent occasions of popular wrongdoing.[238] But this right could so rarely be exercised that it became virtually obsolete.