Chap. VII Their Capital Punishments
The Jews of old had only four sorts of death563 in use among them. 1. Lapidatio,564 stoning. 2. Combustio,565 burning. 3. Decollatio,566 beheading. 4. Suffocatio,567 strangling. Of these, stoning was counted the most grievous, burning worse than beheading, beheading worse than strangling, and strangling was the easiest of all.
They have a rule,568 that wheresoever the Scripture saith of an offender, Morte plectetur, he shall be punish’d with death, not expressing the kind of death, there it ought to be interpreted of Strangling. For example, the Law saith of the Adulterer, Lev. 20. 19. Morte plectatur, let him be punished with death: because the kind of death is not here mentioned, they interpret it strangling. The reason of this rule is, because strangling was the easiest death of the four; and where the Law determineth not the punishment, there they say, Ampliandi favores, The favourablest exposition is to be given.
The rule is not generally true; for in former times Adultery was punish’d with stoning. I will judge thee after the manner of them that are Harlots, saith the Lord, Ezek. 16. 38. And in the fortieth verse the judgment is named, They shall stone thee with stones: likewise the Scribes and Pharisees said unto Christ, Moses in the Law commanded us, that such should be stoned, John 8.
Before we treat in particular of these four punishments it may be questioned, Whether the Jews had any power to judge of life and death, at that time when they crucified our blessed Saviour? The Jews said to Pilate, Is it not lawful for us to put any man to death; Joh. 18. 31. Latter Jews say569 that all power of capital punishments was taken from them forty years before the destruction of the second Temple, and of this opinion are many Divines.
Answer. First, the Jews speech unto Pilate, that it was not lawful for them to put any man to death, cannot be understood, as if they should have said, we have no power to put any man to death; for admit, that power in criminals were, in the general, taken from them, yet in this particular power was permitted them at that time from Pilate, Take ye him, and judge him according to your Law, Joh. 18. 31. Neither can it be said, that their Law could not condemn him, if he had been a transgressor thereof; or that they had not out of their law to object against him: for they say, They had a law, and by their law he ought to die, John 19. 7. It was not then want of Power, but the holiness of that time, made them say it was unlawful. For they held it unlawful upon their days of preparation to sit on life and death, as hath been shewn in the Chapter of translating Feasts. And Friday, on which our Saviour was condemned, was the preparation of their Sabbath.
Secondly, in the questions, whether power of judging capital crimes were taken from them by the Romans? We are to distinguish between crimes. Some crimes were transgressions of the Romans law, as theft, murder, robberies, &c. power of judging in these was taken from them: other crimes were transgressions only against the law of Moses, as blasphemy, and the like: in these, power of judging seemeth to have remained with them. When Paul was brought by the Jews before Gallio, Gallio said unto them, if it were a matter of wrong or wicked lewdness, O ye Jews, reason would, that I should bear with you: but if it be a question of words, and names of your law, look ye to it, Acts 18. 14.
In handling these four punishments: First observe the offenders, whom the Jews make liable to each punishment, and then the manner of the punishment.
The persons to be stoned were eighteen.570 1. He that lieth with his own mother, 2. Or with his fathers wife, 3. Or with his daughter-in-law, 4. Or with a betrothed maid, 4. Or with the male, 6. Or with the beast. 7. The woman that lieth down to a beast. 8. The blasphemer. 9. He that worshippeth an Idol. 10. He that offereth of his seed to Moloch. 11. He that hath a familiar spirit. 12. The Wizard. 13. The private enticer to Idolatry. 14. The publique withdrawer to Idolatry. 15. The Witch. 16. The prophaner of the Sabbath. 17. He that curseth his Father or his Mother. 18. The Rebellious Son. The manner of stoning was thus: The offender was led to a place without the gates, two cubits high, his hands being bound: from hence one of the Witnesses tumbled him by a stroke upon the loins; if that killed him not, the Witnesses lifted up a stone, being the weight of two men, which chiefly the other Witnesse cast upon him; if that killed him not, all Israel threw stones upon him. The hands of the Witnesses shall be first upon him to put him to death, and afterwards the hands of all the people, Deut. 17. 7.
Hence the opinion of R. Akiba571 is commonly received, that such an Idolater (it holdeth in all others condemned to this death) was reserved until one of the common feasts, at which all the multitude of Israel came to Jerusalem. The party thus executed being quite dead, was afterward for greater ignominy hanged on a tree, till towards the Sun-set, at which time he and the tree were both buried.
Malefactors adjudged to burning were ten:572 1. The Priests daughter which committed whoredome. 2. He which lieth with his own daughter. 3. Or with his daughters daughter. 4. Or with his sons daughter. 5. Or with his wives daughter. 6. Or with her sons daughter. 7. Or with her daughters daughter. 8. Or with his Mother-in-law. 9. Or with the Mother of his Mother-in-law. 10. Or with the Mother of his Father-in-law.
The manner of burning was two fold. Some they burnt with wood and faggots; this was termed573 by them Combustio corporis, the burning of the body: Others they burnt by pouring in scalding hot lead in at their mouths, which descending into their bowels killed them, the bulk of their body remaining whole, and this was termed therefore Combustio animæ, the burning of their soul. This last was most in use, and alone described by most of their Writers.
Malefactors condemned to beheading, were of two sorts,574 1. The Murderer, 2. Those of any City, who were drawn to Idolatry. The manner thereof is at this day in use.
Malefactors strangled, were six,575 1. He that smiteth his father or his mother, 2. He that stealeth a soul of Israel, 3. An Elder which contradicteth the Consistory, 4. A false Prophet, and he that prophesieth in the name of an Idol, 5. He that lieth with another mans wife, 6. He that abuseth the body of the Priests daughter.
The manner of strangling was thus. The malefactor was put in dung up to the loins, a towel being cast about his neck; which two Executioners, one on each side, plucked to and fro until he was dead.
Notes
563 Paraphrast. Cald. Ruth. 1. 17. Mikkotsi. fol. 188. col. 3.
564 סקילה Sekila, Lapidatio.
565 שריפה Sheripha, combustio.
566 הרג Hereg. decollatio.
567 חנק Chenek. Suffocatio.
568 כל מיתה האמורה בתורה סתם חנק היא Omnis mors quæ absolutè in lege usurpatur, strangulatio est. R. Solom. Exod. 21. 16.
569 Moses Kotsen. in Sanhedrim.
570 Moses Kotsen. fol. 188. col. 4.
571 Paul. Fagius. Deut. 17. 7.
572 Moses Kotsen. loco superius citato.
573 Rab. Levi. Levit. 20.
574 Moses Kotsen. in Sanhedrim.
575 Moses Kotsen. ibid.