Tractate Sanhedrin, Herbert Danby tr. , at sacred-texts.com
SANHEDRIN is the title given to the fourth tract in the fourth of the six orders or series which make up the Mishnah. 1 This order, called nezikin, "damages" (or, in the Tosefta, yeshu‘oth, "redemptions"), deals more or less directly with the various branches of Jewish jurisprudence; and Sanhedrin, as its name implies, treats of the higher legislative courts, their constitution, authority, and method of procedure.
The Mishnah and Tosefta, which are here translated, 2 may be regarded as together giving the bulk of the traditions on the subject in the form in which they existed at the close of the second century A.D. The Mishnah gives an ordered, comprehensive sketch of the regulations which
governed the legal courts; while the Tosefta goes over similar ground in a freer manner, frequently repeating, occasionally contradicting, and constantly supplementing--not always relevantly--the substance of the more authoritative and final code. The Tosefta must not, however, be regarded as a later addition to the existing Mishnah; its similarities and differences lend themselves rather to a hypothesis which would see in the Tosefta a supplement to an earlier form of the Mishnah than is now in our possession. 1
The Mishnah opens by passing in review the less serious cases which come up for trial or adjudication, such as can be settled, if need be, on the basis of a money payment. They are passed by with just the briefest mention; they are not a real part of the subject-matter, since they do not come before the Sanhedrin, but may be decided by a court or jury consisting of as few as three members. The constitution of the greater and lesser Sanhedrins is then given, with a summary of the types of case which comes before each--normal capital cases before the inferior court, and those of more national significance, such as communal
apostasy ("the beguiled city," Deut. xiii. 12 ff.), and the condemnation of a high priest, a false prophet, or a tribe, before the higher court. Then follows a section defining the relations which the king and high-priest hold to the court; characteristically the Mishnah wanders away from the main point in treating of the king, and gives us a verse by verse commentary on Deut. xvii. 16 ff.
The real subject of the tract is now entered upon. The qualities and disabilities which make a man eligible or ineligible to act as a judge or witness are stated, as well as the rights the two parties to a suit have in the selection of their judges. We are then told the method of conducting trials in non-capital cases, and a comparison with the details peculiar to the management of capital cases serves to emphasize the importance and seriousness of the latter. The method of carrying out the four death penalties is next discussed in the order of their relative severity: stoning, burning, decapitation, and strangulation. This again is followed by a catalogue, in four corresponding divisions, of the criminals who are respectively liable to these capital punishments.
The Tosefta, while preserving this same outline of the subject, allows itself a much greater licence in the way of digressions and minute detail. Thus, we are treated to lengthy excursuses on the principles of arbitration and the intercalation of leap-years; by an odd train of thought we are led away from the subject of the Sanhedrin and structural alterations in Jerusalem, to some verbal
gymnastics on Deut. xiv. 23; while the Mishnah's digression on the king develops in the Tosefta into a discussion on the script of Ezra's Book of the Law. In the matter of the court's procedure we are granted the amplest details, though here it becomes more and more clear that we are getting fewer traditions of the older historic Sanhedrin, and more of its academic survival at Jabne or Usha. 1
When we come to the section treating of the four capital punishments, the Tosefta's contributions become scanty: on many points it is silent, while on a few others it only repeats the Mishnah with a few unimportant variations.
Between the account of the murderer and the men of "a beguiled city"--the two types of criminal who are to suffer death by decapitation--two sections are inserted: a brief one (not in Tosefta) giving a list of cases when it is permissible for men to take the law into their own hands; and a longer one (expanded to a great length in Tosefta) treating in a freer, more edifying or "haggadic" fashion the subject, "Those who have no share in the world to come." 2
The general interest of the tract is evident since trials before the Jewish authorities form a prominent feature of the Gospels and Acts of the Apostles. More particularly the justice and regularity of our Lord's trial and condemnation have long been called in question, and a voluminous literature has grown round the subject. 1 We have the New Testament accounts of the procedure adopted by the Jews in their examination and condemnation of Jesus; and, since we also possess a detailed code, drawn up by the Jews themselves, purporting to embody the regulations governing such a trial, it should be open to all to make the comparison and arrive at a conclusion.
This has often been done: at first sight nothing seems simpler. If we assume that the Gospels give us an essentially complete account of a formal trial before the Sanhedrin of a prisoner charged with blasphemy, and if likewise we assume that all the details of procedure laid down in the Tract Sanhedrin were in operation in the first half of the first century, only one conclusion is open to us: our Lord's trial was no trial at all, and his condemnation was illegal. Arguing from these premises it is perfectly fair to sum up, as does one of the best of the investigators along these lines, in such terms as--
Unfortunately the matter does not lend itself to such a straightforward comparative method: the assumptions are too precarious to admit of our reaching a valid result by their means. Neither of our documents is such that we can use it as a standard by which to judge the other. We may assume the historical truth of the details given in the Gospels, but it is too much to assume that we are given all the details; on the other hand, though the Hebrew sources may give us a general conception of the conduct of a trial before the Sanhedrin, the details they give us are such that we cannot be assured that what Jewish scholars thought to be correct at the end of the second century was necessarily the normal practice at the beginning of the first. An important point to remember in this connexion is, that while the Tract Sanhedrin
embodies the views of the Pharisaic Doctors of the Law regarding criminal procedure, the earlier Sanhedrin down to 70 A.D. was largely under the control of the Sadducean priesthood, whose views did not harmonize with those of the Pharisees (see Box, art. "Who were the Sadducees?" Expositor, January 1918).
In estimating the value to be attached to the contents of the tract it should be remembered that apart from the details given us in this early rabbinical literature our knowledge of the Sanhedrin is singularly thin. The external evidence for testing the traditions here set forth, is, for all practical purposes, confined to the New Testament and the writings of Josephus. 1 Both these sources are, as written documents, earlier than the rabbinic, but it should not be forgotten that the former is available for a period of hardly more than thirty years, circa 27-60 A.D.; while the latter, though covering a wider period, roughly 200 B.C. to 70 A.D., can be described as neither detailed nor direct. On the basis of such evidence alone it would be unwise to dogmatize about the nature of an institution which by the time that the Tract Sanhedrin was reduced to writing, had had an existence, necessarily far from uniform, for some five hundred years. 2
On the other hand, it has to be admitted that the Tract Sanhedrin possesses many deficiencies as a source of information about the judicial procedure in the first century.
To speak of the details which it gives us as "historical" or "unhistorical" is to assume the existence of limitations which the compilers of these traditions never recognized; for they neither attempt to give what we should describe as "a historical survey," nor do they aim at presenting a picture of the Sanhedrin as it appeared at any prescribed time. As a reaction against the humiliating circumstances following their loss of independence, the Jews tended to idealize their past history and institutions; and their object here is not to describe their present conditions, but to amass whatever details they can, concerning the former nature of the Sanhedrin. Their mentality was such that they looked upon their institutions not as progressive, but as inferior survivals of the past. Therefore they find no interest in depicting the present or even the immediate past; they seek rather to gather such material--no matter how far
it may be removed from recent fact--as shall portray their subject in its more perfect shape, nearer to the ideal which in their opinion it one time approached. The practice of the Sanhedrin of their own time must of necessity have formed the starting-point of their researches; but they overlaid this with whatever other matter they could discover relating to it, either direct from tradition or from what they could, by their peculiar logical processes, infer from Scripture. The only canon of truth which they recognized was, that both current usage and tradition should conform, or be explainable 1 as conforming, to the Mosaic legislation.
What New Testament students hope for, and consequently tend to expect, in such a production as the present tract, is a picture of that highest legislative court of the Jews as it existed in the early half of the first century. But such an account is given to us only in a very modified form. Much of what it tells us of the Sanhedrin must, it is impossible to doubt, have held good for that particular time, but the picture, as a whole, suffers from a double distortion.
I.--On the one hand the account is largely influenced by facts and theories as they were known and believed at the end of the second century, when the compilers’ personal knowledge of Jewish law-courts was confined to the groups of scholars who assembled, a Sanhedrin in name, at Jabne or Usha, but whose authority was scarcely
more than that with which the piety of their fellow Jews chose to invest them. 1 Their influence over the religious life of the Jews was admittedly great. They busied themselves with the interpretation of the Scriptures and preservation of their traditions; and it was through their labours that the Mishnah, a complete corpus juris of Judaism, was made possible. But their functions were scarcely more than academic, and their legislation tended to wander farther from political actuality into the regions of abstract perfection. It is, for example, difficult to suppose that the picture given us of the procedure of the Sanhedrin is not coloured more highly than can ever have been the fact in practice, with what is known as the middath r’ḥzamim, "the quality of mercy." One of the rabbinic canons was that their code must show "mercy in judgement" in the highest degree. Their judicial body was regarded as best fulfilling its functions when it sought to act as "counsel for the defence"; if there seemed to be no extenuating circumstances in the prisoner's favour, the judges were to do their utmost to find some. It was even illegal for the judges to be unanimous in passing an unfavourable verdict. A like attitude is apparent in the fact that a verdict of acquittal can be reached quickly, but one of conviction only as a result of most leisurely deliberation. The prisoner must be robbed of no chance which might in any way
tell in his favour. This particular standpoint receives its strongest expression in Makkoth I. 10 "The Sanhedrin which condemns to death one man in seven years is accounted murderous. According to R. Eleazar b. Azaria, it would be a murderous court even if it condemned one man in seventy years. R. Tarphon and R. Akiba assert that if they had been in the Sanhedrin [i.e. when it possessed capital powers] no man would ever have been condemned to death by it."
II.--The other factor which makes for unreality is the rabbinic writers’ desire to attain a theoretical completeness. This is usually perceptible and can easily be discounted. They saw in the Sanhedrin an institution which, they held, had existed from the time when Moses appointed the Seventy Elders, and had since exercised an authority little less than supreme. And so it comes about that the tract finds it necessary to discuss what were the relations of the Sanhedrin to kings and high-priests, 1 what part they can take in the court's deliberations and how far they are subject to its rulings. It even insists that the Sanhedrin shall have a veto in matters of foreign policy. The whole of the Mosaic legislation involving capital punishments, however temporary it may have been or however impracticable, 2 is tabulated and systematized, and the method of procedure fully discussed. The outcome
is a penal code which one suspects to be at times nothing more than the laborious product of students with more knowledge of the minutiae of vocabulary 1 than recognition of practical needs, or even of prosaic possibility.
The result of all this is, that we are given a body of genuine historic tradition about the Sanhedrin, difficult to ascertain precisely, largely influenced by what the court was at the end of the second century, and by an ideal view of what it night have been when the Jewish state was at the height of its power.
The text of the Mishnah from which the following translation is made, is that of the Cambridge University Library Manuscript, Add. 470, 1, as given in the edition by W. H. Lowe: The Mishnah on which the Palestinian Talmud Rests. Cambridge, 1883 (referred to in the notes as "C"). The more important variants in the Bomberg text (the editio princeps of Talmud Babli, the basis of the Mishnaioth printed texts) are indicated in the notes, and where necessary C is emended on the basis of the editio princeps of the Mishnah, Naples 1492, (referred to as "N"). Occasional use is also made of readings in Talmud Yerushalmi, ed. Venice
[paragraph continues] 1523 ("P"), the Mishnah Codex De Rossi, no. 138, Parma ("R''), and Kauffmann's MS. of Mishnah in the Budapest Academy ("K").
The Tosefta translation is based on Zuckermandel's text, Passewalk and Treves, 1877-82.
Commentaries on the text of Sanhedrin:--
Strack (H. L.): Sanhedrin-Makkoth, die Mishnatraktate über Strafrecht und Gerichtsverfahren, nach Handschriften und alten Drucken herausgegeben, übersetzt und erläutert. Leipzig, 1910.
Goldschmidt (Lazarus): Der Babylonische Talmud, herausgegeben nach der ersten Zensurfreien Bombergischen Ausgabe (Venedig 1520-23) . . . und wortgetreu übersetzt und mit kurzen Anmerkungen versehen. Siebenter Band, Berlin, 1903.
Hölscher (Gustav): Die Mischna-tractate "Sanhedrin" und "Makkoth" ins Deutsche übersetzt . . . mit Anmerkungen versehen. Tübingen, 1910.
For the bearing of the tract on the trial of our Lord, see--
A discussion of the question whether the Jews, under the Romans, were empowered to inflict the death penalty is to be found in--
Of less value is
v:1 On the general questions introductory to the study of Jewish literature, see the (forthcoming) volume in this series: A Short Survey of the Literature of Rabbinical Judaism.
v:2 It is hardly necessary to say that the arrangement of alternate paragraphs of Mishnah and Tosefta employed in the present translation is not that found in the original texts. The two are quite distinct. It is adopted here in order to keep together the subjects treated of, and to illustrate the relation which exists between the two works. The sequence of subjects in Mishnah and Tosefta being identical, this arrangement can be carried out without changing the original order in any way.
vi:1 The relation which the Tosefta hears to the Mishnah has never been satisfactorily determined. That the relation is very close is clear: the sequence of subjects in the two is identical, and the verbal similarity in certain cases extends over complete paragraphs. It is equally noteworthy that where the one gives scanty details, the other is generally diffuse, pointing to a conclusion that the one is complementary, or even a commentary on the other. The fragmentary style, inequality of treatment, frequent lacunae, and what would be obscurity it we lacked the Mishnah text, are conclusive against the possibility of the Tosefta being a separate, self-sufficient study of the same subject.
viii:1 Compare especially T. vii. 8 f.
viii:2 It is probable that the second of these sections is a late comer into the tract. Both in its treatment and in its subject-matter it is out of place in its present context: it is difficult to see what logical connection it can have either with what follows or goes before. As a result of its present position it separates the phrase, "The members of a beguiled city" (M. x. 4), a whole chapter from its necessary antecedent (M. ix. r b); and in most editions of the text has induced the wrong reading, "The men of a beguiled city have no share in the world to come," in the attempt to find the missing antecedent. Further, in the Mishnah of the Babylonian Talmud its position is different: there, the two final chapters of the tract have their order reversed.
ix:1 See the bibliography in Husband's Prosecution of Jesus.
x:1 A. Taylor Innes, The Trial of Jesus Christ: a legal monograph, pp. 58 ff.
xi:1 A few points may be gleaned from the apocryphal books, and some hazardous conclusions, little removed from guess-work, may be derived from a study of the courts of law which the Chronicler describes; see 2 Chron. xix. 5-11; 1 Macc. vii. 33; xi. 23; xii. 6, 35; xiii. 36; xiv. 28; 2 Macc. i. 10; iv. 44; Judith iv. 8; xi. 14; xv. 8.
xi:2 It is not possible in such a brief introduction as the present to deal with the origin and development of the Sanhedrin; most of what is known, adduced, or guessed, may be found in Schürer, p. xii History of the Jewish People, II. i. 163. ff.; Bacher on "Sanhedrin," in Hastings' Dictionary of the Bible; and Thomson on "Sanhedrin," in Hastings' Dictionary of Christ and the Gospels; there, also, will be found discussed the problems arising out of the differences which are so conspicuous between the Greek and Jewish sources. For the theory which seeks to solve these difficulties by the hypothesis that there were two Sanhedrins existing at the same time, one dealing exclusively with secular matters (that described in N. T. and Josephus), and the other with the religious side of the Jewish life (with which alone the Jewish sources are alleged to concern themselves), see Büchler, Das Synhedrium in Jerusalem, Vienna, 1902; Lauterbach on "Sanhedrin," in Jewish Encyclopedia; and, opposing the theory, G. A. Smith, Jerusalem, vol. i. pp. 421 ff.
xiii:1 For an extreme instance of this see M. i. 6 (7: iii. 7) on the Lesser Sanhedrin.
xiv:1 But see Origen, Epistola ad Africanum, 14, where it is alleged that the Presidents of these courts assumed to themselves powers of life and death. For possible recognition by the Romans, cf. Josephus, Ant. XIV. x. 57.
xv:1 The tract never recognizes that the high-priest was the regular President of the Sanhedrin as we are led to believe from the non-Hebrew sources. According to T. iv. 1 (which here contradicts the Mishnah, ii. 1) he may not even be a member of the court.
xv:2 That certain legislation was only of theoretical interest is recognized; see T. xiv. 1, xi. 6 a.
xvi:1 For the way in which the gezera shawa rule of interpretation (see p. 72, n. 6) was utilized to determine which death should be applied to criminals when Scripture does not enjoin the particular method, see Jewish Encyclopedia, art. "Capital Punishment." Should this rule fail to apply, the criminal is to die by the non-biblical penalty of strangulation. See. p. 95, n. 3.