CHAPTER III.

COURTS OF JUDICATURE, LEGAL PROCEEDINGS, AND CRIMINAL LAW OF THE JEWS.

SECTION 1.

JEWISH COURTS OF JUDICATURE, AND LEGAL PROCEEDINGS.

I. Inferior Judges.-II. Seat of Justice.-III. Appeals-Constitution of the Sanhedrim or Great Council.-IV. Form of Legal Proceedings among the Jews.-1. Citation of the parties.-2, 3. Form of pleading in civil and criminal cases.-4. Witnesses.5. The Lot, in what cases used judicially.-6. Forms of Acquittal.-7. Summary Justice, sometimes clamorously demanded.-V Execution of Sentences, by whom, and in what manner performed. I. ON the settlement of the Israelites in the land of Canaan, Moses commanded them to appoint judges and officers in all their gates, throughout their tribes (Deut. xvi. 18.); whose duty it was to exercise judicial authority in the neighbouring villages; but weighty causes and appeals were carried before the supreme judge or ruler of the commonwealth. (Deut. xvii. 8, 9.) According to Josephus, these inferior judges were seven in number, men zealous in the exercise of virtue and righteousness. To each judge (that is, to each college of judges in every city) two officers were assigned out of the tribe of Levi. These judges existed in the time of that historian,2 and, although the rabbinical writers are silent concerning them, yet their silence neither does, nor can outweigh the evidence of an eyewitness and magistrate, who himself appointed such judges.

The Priests and Levites, who from their being devoted to the study of the law, were consequently best skilled in its various precepts, and old men, who were eminent for their age and virtue, administered justice to the people in consequence of their age, the name of elders became attached to them. Many instances of this kind occur in the New Testament; they were also called rulers, agxovtes. (Luke xii. 8. where ruler is synonymous with judge.) The law of Moses contained the most express prohibitions of bribery (Exod. xxiii. 8.), and partiality; enjoining them to administer justice without respect of persons, and reminding them, that a judge sits in the seat of God, and consequently that no man ought to have any pre-eminence in his sight, neither ought he to be afraid of any man in declaring the law. (Exod. xxiii. 3. 6, 7. Lev. xix. 15. Deut. i, 17.

1 Josephus, Ant. Jud. lib. iv. c. 14. Schulzii Prolusio de variis Judæorum erroribus in Descriptione Templi II. § xv. pp. 27-32., prefixed to his edition of Reland's Treatise De Spoliis Templi Hierosolymitani Trajecti ad Rhenum, 1775,

8vo.

2 Josephus, De Bell. Jud. lib. ii. c. 20. § 5.

3 Ernesti Institutio Interpretis Novi Testamenti, part iii. c. 10. § 73. p. 356.

xxi. 18-20.) The prophet Amos (viii. 6.) reproaches the corrupt judges of his time, with taking not only silver, but even so trifling an article of dress as a pair of (wooden) sandals, as a bribe, to condemn the innocent poor who could not afford to make them a present of equal value. Turkish officers and their wives in Asia, to this day, go richly clothed in costly silks given them by those who have causes depending before them. It is probable, at least in the early ages after the settlement of the Jews in Canaan, that their judges rode on white asses, by way of distinction (Judg. v. 10.), as the Mollahs or men of the law do to this day in Persia, and the heads of families returning from their pilgrimage to Mecca.3

II. In the early ages of the world, the gate of the city was the seat of justice, where conveyances of titles and estates were made, complaints were heard and justice done, and all public business was transacted. Thus Abraham made the acquisition of his sepulchre in the presence of all those who entered in at the gate of the city of Hebron. (Gen. xxiii. 10. 18.) When Hamor and his son Schechem proposed to make an alliance with Jacob and his sons, they spoke of it to the people at the gate of the city. (Gen. xxxiv. 24.) In later times Boaz, having declared his intention of marrying Ruth, at the gate of Bethlehem caused her kinsman to resign his pretensions, and give him the proper conveyance to the estate. (Ruth iv. 1-10.) From the circumstance of the gates of cities being the seat of justice, the judges appear to have been termed the Elders of the Gate (Deut. xxii. 15. xxv. 7.); for, as all the Israelites were husbandmen, who went out in the morning to work, and did not return until night, the city gate was the place of greatest resort. By this antient practice, the judges were compelled, by a dread of public displeasure, to be most strictly impartial, and most carefully to investigate the merits of the causes which were brought before them. The same practice obtained after the captivity. (Zech. vii. 16.) The Ottoman court, it is well known, derived its appellation of the Port, from the distribution of justice and the dispatch of public business at its gates. During the Arabian monarchy in Spain, the same practice obtained; and the magnificent gate of entrance to the Moorish palace of Alhamra at Grenada to this day retains the appellation of the Gate of Justice or of Judgment. To the practice of dispensing justice at the gates of cities, there are numerous allusions in the sacred volume. For instance, in Job v. 4. the children

1 Morier's Second Journey, p. 136. 2 Harmer's Observations, vol. ii. p. 317. 3 "We met, one day, a procession, consisting of a family returning from the Pilgrimage to Mecca. Drums and pipes announced the joyful event. A whitebearded old man, riding on a white ass, led the way with patriarchal grace; and the men who met him or accompanied him, were continually throwing their arms about his neck, and almost dismounting him with their salutations. He was followed by his three wives, each riding on a high camel; their female acquaintances running on each side, while they occasionally stooped down to salute them. The women continually uttered a remarkably shrill whistle. It was impossible, viewing the old man who led the way, not to remember the expression in Judges v. 10."Jowett's Christian Researches, p. 163.

4 Murphy's Arabian Antiquities of Spain, plates xiv. xv. pp. 8, 9.

of the wicked are said to be crushed in the gate; that is, they lose their cause, and are condemned in the court of judgment. The psalmist (cxxvii. 5.) speaking of those whom God has blessed with many children, says that they shall not be ashamed, but they shall speak with the enemies in the gate; that is, those who are thus blessed, shall courageously plead their cause, and need not fear the want of justice when they meet their adversaries in the court of judicature. Compare Prov. xxii. 22. and xxxi. 23. Lament. v. 14. Amos v. 12., in all which passages the gate, and elders of the land or of the gate, respectively denote the seat of justice and the judges who presided there. And as the gates of a city constituted its strength, and as the happiness of a people depended much upon the wisdom and integrity of the judges who sat there, it may be that our Saviour alluded to this circumstance, when he said The gates of hell shall not prevail against his church (Matt. xvi. 18.); that is, neither the strength nor policy of Satan or his instruments shall ever be able to overcome it.

III. From these inferior tribunals, appeals lay to a higher court, in cases of importance. (Deut. xvii. 8-12.) In Jerusalem, it is not improbable that there were superior courts in which David's sons presided. Psal. cxxii. 5. seems to allude to them: though we do not find that a supreme tribunal was established at Jerusalem earlier than in the reign of Jehoshaphat. (2 Chron. xix. 8-11.) It was composed of priests and heads of families, and had two presidents, one in the person of the high priest, and another who sat in the name of the king. The judicial establishment was reorganised after the captivity, and two classes of judges, inferior and superior, were appointed. (Ezra vii. 25.) But the more difficult cases and appeals were brought, either before the ruler of the state, or before the high priest; until, in the age of the Maccabees, a supreme judicial tribunal was instituted, which is first mentioned under Hyrcanus II.1

This tribunal (which must not be confounded with the seventytwo counsellors, who were appointed to assist Moses in the civil administration of the government, but who never fulfilled the office of judges,) is by the Talmudists denominated SANHEDRIN, and is the great Council so often mentioned in the New Testament. It was instituted in the time of the Maccabees, and was composed of seventy or seventy-two members, under the chief presidency of the high priest, under whom were two vice-presidents; the first of whom, called the Father of the Council, sat on the right, as the second vice-president did on the left hand of the president. The other assessors, or members of this council, comprised three descriptions of persons, viz. 1. The Agigsis, or Chief Priests, who were partly such priests as had executed the Pontificate, and partly the princes or chiefs of the twenty-four courses or classes of priests, who enjoyed this honourable title;-2. The IIger Burago or Elders, per

1 Josephus, Ant. Jud. lib. xiv. c. 9. § 3.

haps the princes of tribes or heads of families;-and 3. The Teapares, Scribes or men learned in the law. It does not appear that all the elders and scribes were members of this tribunal: most probably, those only were assessors, who were either elected to the office, or nominated to it by royal authority.

The Talmudical writers assert that the Sanhedrin held its sittings in the Temple; but they are contradicted by Josephus,1 who speaks of a council house in the immediate vicinity of the temple, where this council was in all probability convened; though in extraordinary emergencies it was assembled in the high priest's house, as was the case in the mock trial of Jesus Christ. The authority of this tribunal was very extensive. It decided all causes, which were brought before it, by appeal from inferior courts: and also took cognizance of the general affairs of the nation. Before Judæa was subject to the Roman power, the Sanhedrin had the right of judging in capital cases, but not afterwards; the stoning of Stephen being (as we have already observed) a tumultuary act, and not in consequence of sentence pronounced by this Council.

Besides the Sanhedrin, the Talmudical writers assert that there were other smaller councils, each consisting of twenty-three persons, who heard and determined petty causes: two of these were at Jerusalem, and one in every city containing one hundred and twenty inhabitants. Josephus is silent concerning these tribunals, but they certainly appear to have existed in the time of Jesus Christ; who, by images taken from these two courts, in a very striking manner represents the different degrees of future punishments, to which the impenitently wicked will be doomed according to the respective heinousness of their crimes. But I say unto you, that whosoever is angry with his brother without a cause, shall be in danger of the JUDGMENT; and whosoever shall say to his brother, Raca, shall be in danger of the COUNCIL; but whosoever shall say, Thou fool, shall be in danger of HELL FIRE. (Matt. v. 22.) That is, whosoever shall indulge causeless and unprovoked resentment against his Christian brother, shall be punished with a severity similar to that which is inflicted by the court of judgment. He, who shall suffer his passions to transport him to greater extravagances, so as to make his brother the object of derision and contempt, shall be exposed to a still severer punishment, corresponding to that which the Council imposes. But he who shall load his fellow Christian with odious appellations and abusive language, shall incur the severest degree of all punishments,-equal to that of being burnt alive in the valley of Hinnom-which, having formerly been the scene of those horrid sacrifices of children to Moloch by causing them to pass through the fire, the Jews in our Saviour's time used to denote the place of the damned.

It is essential to the ends of justice, that the proceedings of the courts should be committed to writing, and preserved in archives or

1 De Bell. Jud. lib. v. c. 4. § 2. lib. vi. c. 6. §3.

1

registries: Josephus informs us that there was such a repository at Jerusalem, which was burnt by the Romans, and which was furnished with scribes or notaries, for recording the proceedings. From this place, probably, St. Luke derived his account of the proceedings against the protomartyr Stephen, related in Acts vi. and vii. These tribunals also had inferior ministers or officers (vangerai, Matt. v. 25.), who probably corresponded with our apparitors or messengers; and others whose office it was to carry the decrees into execution, viz. 1. The gaxroges, or exactors, whose business it was to levy the fines imposed by the court; and 2. The Baravisas, or tormentors, those whose office it was to examine by torture: as this charge was devolved on jailors, in the time of Christ, the word Baravins came to signify a jailor.2

III. It appears from Jer. xxi. 12. that causes were heard, and judgment was executed in the morning. According to the Talmud3 capital causes were prohibited from being heard in the night, as were the institution of an examination, pronouncing of sentence, and the carrying of it into execution, on one and the same day; and it was enjoined that at least the execution of a sentence should be deferred until the following day. How flagrantly this injunction was disregarded in the case of Jesus Christ, it is scarcely necessary to mention. According to the Talmud also, no judgments could be executed on festival days; but this by no means agrees with the end and design of capital punishment expressed in Deut. xvii. 13. viz. That all the people might hear and fear. It is evident from Matt. xxvi. 5. that the chief priests and other leading men among the Jews were at first afraid to apprehend Jesus, lest there should be a tumult among the people: it is not improbable that they feared the Galilæans more than the populace of Jerusalem, because they were the countrymen of our Lord. Afterwards, however, when the traitor Judas presented himself to them, their fears vanished away.

IV. In the early ages of the Jewish history, judicial procedure must have been summary, as it still is in Asia. Of advocates, such as ours, there is no ppearance in any part of the Old Testament. Every one pleaded his own cause; of this practice we have a memorable instance in 1 Kings iii. 15-28. As causes were heard at the city gate, where the people assembled to hear news or to pass away their time, Michaelis thinks that men of experience and wisdom might be asked for their opinion in difficult cases, and might sometimes assist with their advice those who seemed embarrassed in their own cause, even when it was a good one. Probably this is alluded to in Job xxix. 7-17. and Isa. i. 17.5 From the Romans, the use of advocates, or patrons who pleaded the cause of another,

1 Josephus, De Bell. Jud. lib. vi. c. 3. § 3.

2 Schleusner's and Parkhurst's Lexicon, in voce.

3 Sanhedrin, IV.

4 And also among the Marootzee, a nation inhabiting the interior of South Africa.-Campbell's Travels in the Interior of South Africa, vol. ii. p. 236. (London, 1822. 8vo.) From this, and other coincidences with Jewish observances, Mr. C. thinks it probable that the Marootzee are of Jewish or Arabian origin.

5 Commentaries on the Laws of Moses, vol. iv. pp. 320–323.