The Death Penalty Debate

APPENDIX A

The Patriarchal Power of "Capital Punishment"

As we have seen, Dr. Benjamin Palmer has set forth the idea that the Family had the power of capital punishment. Other theologians of greater stature than Palmer have disputed this claim. My mentor, R.J. Rushdoony, does not believe that the Family had the power of capital punishment. He suggests that the mark upon Cain (Genesis 4:15) was a setting aside of "capital punishment" (due to Cain for the murder of his brother) on the basis of an alleged principle of God's ordination that "the family was barred from an area of law enforcement, the death penalty, which properly belongs to the State" (Institutes of Biblical Law, Vol. I, p. 360).

Q.68: Is there a principle that prohibits the Family from carrying out the command for "capital punishment?"
A.: There are a number of problems with this assumption.

First, this principle, if true, would have to end somewhere. That is to say, at some point in the process of human generation, a person would have to be a distant enough relative to execute someone, because ultimately we are all related through Adam. When does a person cease to be a part of one's family and thus able to execute penal sanctions for capital crimes? The problem is particularly obvious right at the time of Cain and Abel. The theologians do not (cannot?) give us a break-off point. Shall we say three generations? Four? Five? But remember, people were living hundreds of years then. With knowledge of their great life-spans, we can calculate that there was a sufficient number of distantly-related people to carry out Cain's execution. Assuming equal division of the sexes, no deaths before Abel's, one child born per year per couple from the age of 18, and the truth of Genesis 5:4 (Adam "begat sons and daughters") we know that

". . . at the time Cain killed his brother (c. 129 A.M.), Adam and Eve would have had more than 3,000 grandchildren, and more than 90,000 great-grandchildren. Adding to this the great²- great³- and great⁴- grandchildren . . . the world's population at the time of the murder was about half a million"
(Martin Gardner, "Dr. Matrix Finds Numerological Wonders in the King James Bible," Scientific American, April, 1976, p. 174).

One is led to believe that there must have been someone distantly related enough to carry out the punishment for Cain's murder, granting the existence of the principle that bars the (immediate) family from so doing.

Second, why was Cain so worried that there were many who would kill him, i.e., carry out the required "capital punishment" against him? If all these people knew the penalty for murder, one wonders why they were ignorant of this alleged "principle of the non-participation of the family in the death penalty of its members . . ." (Rushdoony, op. cit., p. 361).

Third, this alleged principle seems to be directly contradicted by other portions of Scripture. Another Theonomic theologian, Gary North, points out the existence of a "revenger of blood" (Numbers 35:19ff.), a member of the family of the slain person, who carries out capital punishment against the murderer.

The official executioner of the family of the slain person, the avenger of blood, was permitted to slay the suspect, but not if he stayed within the walls of the city of refuge. The suspect then received a trial. If convicted of murder, he was turned over to the avenger of blood. If found innocent, the suspect could dwell safely inside the city. The avenger could only kill him if the latter ventured outside the city's protection, i.e., the actual walls (Numbers 35:27-28).
The office of the blood avenger was uniquely familistic. The ga'al was the next of kin. The same Hebrew word is also translated "kinsman" (Ruth 3:9,12-13). The ga'al was therefore the kinsman-redeemer, yet he was also the avenger of blood.
("Economic Commentary on the Bible," Number 35, in The Chalcedon Report)

What North says clearly contradicts the assertion that a

. . . basic fact of Biblical Law is that the power to kill is not a family power, because coercion is not the strongest aspect of family law. The family is tied together by bonds of love; the husband cleaves to the wife, and the children obey their parents in love and duty."
(Rushdoony, op. cit., p.360).

What Rush says about the power of Love in the Family as the strongest force is unquestionably true, and we agree with it whole-heartedly. But we must not conclude that in the Old Testament family members could not execute (shed another's blood), because according to Numbers 35, they could: the avenger of blood was the next of kin, a uniquely familistic shedding of blood.

Fourth, the notion that one member of the family cannot execute another is very plainly contradicted by Deuteronomy 13:6-11. The relevant commands read:

6. If thy brother, the son of thy mother, or thy son, or thy daughter, or the wife of thy bosom, or thy friend, which is as thine own soul, entice thee secretly, saying, Let us go and serve other gods, which thou hast not known, nor thy fathers.
9. Thou shalt surely kill him, thine hand shall be the first upon him to put him to death, and afterwards the hand of all the people.

The passage makes no distinction between the brother or the son on the one hand, and the (non-related) friend on the other. The passage seems to be saying, no mater how closely related he is to you, the seducer must be executed, and you must cast the first stone.

Fifth, in the latter days obedient families are said to obey the command of Deuteronomy 13 (to cut off idolaters), and in Zechariah 13:1-3 we have a prophecy of Family executions.

And it shall come to pass in that day, saith the LORD of hosts, that I will cut off the names of the idols out of the land, and they shall no more be remembered: and also I will cause the prophets and the unclean spirit to pass out of the land.
And it shall come to pass, that when any shall yet prophesy, then his father and his mother that begat him shall say unto him, Thou shalt not live; for thou speakest lies in the name of the LORD: and his father and his mother that begat him shall thrust him through when he prophesieth.

Sixth, an example of this can be found in Genesis 38:24. According to the International Standard Bible Encyclopedia (James Orr, ed.), "In the early patriarchal times the heads of families and the elders of the tribes were the judges (cf. Gen. 38:24) . . . ." Robert Culver ("Shapat," Theological Wordbook of the Old Testament) says that the one judging "had the executive as well as judicial powers. He also executed or caused to be executed judicial decisions" (II:948). Had the Patriarch Judah been free from guilt, we may assume that he may rightly have wielded the power of capital punishment (cp. Leviticus 21:9).

Thus we see that there was no principle against the Family exercising the power of Capital Punishment, and, as we have seen, this power remained with the Family after the Flood.