Lesson # 350 • Capital Punishment As explained by the Mishna, the Lesser Sanhedrin consists of 23 judges. Unlike the Great Sanhedrin, there are numerous Lesser Sanhedrins, one for each city that has a population of at least 120 men. There is also one Lesser Sanhedrin in each tribe, according to the opinion of Ramban, which acts as a supreme court over the courts of that tribe. Additionally, there are two special Lesser Sanhedrins, one of which meets at the entrance to the court of the Holy Temple, and the other that meets at the entrance to the Temple Mount. These two Lesser Sanhedrins serve a special function in determining the law. The most erudite member of the Lesser Sanhedrin is the chief judge. The court sits in a semi-circle so that each judge can see the others. These courts are given the responsibility of meting out the death penalty, and because of the seriousness of the burden are not give permission to hear any cases that does not involve capital punishment. This unusual specialization by the court emphasizes the seriousness of the task and the difficulty involved in judging these types of cases. In an attempt to insure accuracy of their judgments in this area, therefore, the Lesser Sanhedrin only hear cases where the accused faces the death penalty. Rambam enumerates 36 cases in which the punishment is death. The Lesser Sanhedrin has jurisdiction over these 36 cases. If a defendant in one of these cases is found guilty, the Lesser Sanhedrin would be forced to decree one of the four types of death sentences. These four types of death sentences are used in specific cases. The first is death by stoning. This form of capital punishment applies to 18 types of cases: if a man has intercourse with his mother, his father’s wife, his daughter- in-law, a betrothed maiden, a male or a beast; a woman who has intercourse with an animal; an idolater, a person who offers his child to the idol Molech; a necromancer; a wizard; an enticer to idolatry; a seducer to idolatry; a sorcerer; one who desecrates the Sabbath; aone who curses his father or his mother; a stubborn and rebellious son. The second is death by burning. This form of capital punishment applies to 10 types of cases: if the married daughter of a kohen commits adultery; if a man has intercourse with his daughter, his daughter’s daughter, her son’s daughter, his mother-in-law, his mother-in-law’s mother, or his father- in-law’s mother. In the last six cases he is liable only if he has intercourse with them during his wife’s lifetime. The third is death by decapitation. This form of capital punishment applies to two cases: to a murderer and to the inhabitants of a city seduced to idolatry. The fourth and final death sentence is strangulation. This form of capital punishment applies to six types of cases: one who has intercourse with a married woman; one who strikes his father or mother; one who kidnaps his fellow man; an elder who rebels against a decision of the Great Sanhedrin; one who is a false prophet; and one who prophesies in the name of an idol. For the sake of completeness I have listed a basic outline of the four broad categories of capital offenses as they relate to four applicable method of execution. However, if should be noted that these headings are at best only general descriptive categories. The legal definition of each incorporates various elements of each transgression, the minutiae of legal requirements surrounding it, and the particularities and details of its application in specific cases. These render the offense into a specific and unique legal concept which is quite different from the apparently simplistic categorical headings. In addition, the Jewish legal system further restricted the application of the death penalty by instituting a series of highly restrictive requirements that had to be met before the death penalty could be rendered and imposed. These included certain obligatory preliminary warnings that had to be given to the perpetrator before the commission of the offense and, at the trial, exceedingly difficult standards of evidentiary proof were imposed in capital cases. Moreover in order to acquit a defendant, a simple majority of the judges is sufficient. In order to convict, however, there must be a majority of at least two. The attitude of the law toward capital punishment can be seen from the following Mishna: "A Sanhedrin that effects an execution once in seven years is branded a destructive tribunal; Rabbi Eliezer ben Azariah says, Once in 70 years. Rabbi Tarfon and Rabbi Akiva say: Were we members of a Sanhedrin no person would ever be put to death." The only issue left to mention regarding the Lesser Sanhedrin is that their jurisdiction over the death penalty extends not only to cases involving human life but also to certain cases involving animals. One example is that of an animal charged with having carnal intercourse with humans. Just as the man or woman is to be put to death for this unnatural crime, the animal meets a similar fate. Both receive their sentence from a Lesser Sanhedrin. A second example is that of an ox that killed a person. The Mishna states that the ox has to be judged by the Lesser Sanhedrin. The Mishna derives this law from the verse “the ox shall be stoned and its owner also put to death”. As explained by the Talmud, since the verse juxtaposes the death of the owner and the death of the guilty ox, the same law that would have applied to the owner had he been guilty of homicide is applied to the ox if it is found guilty of homicide. The owner, of course, is not put to death in these cases because one is put to death for a murder only that he commits personally. Rambam in his code concludes that all animals which have been tamed, except for snakes, must be judged by a Lesser Sanhedrin if they are to be put to death for having killed a person. Snakes that killed a person may be put to death without a trial. The subject matter of this lesson is more fully discussed in volume 1 chapter 1 of Jewish Jurisprudence by Emanuel Quint & Neil hecht. Copies of both volumes can be purchased at local Judaica bookstores. Questions to quint@inter.net.il [The Sukkot Homepage]
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