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227 Assault and Battery

THE JEWISH ENCYCLOPEDIA

227

damage except that of stoppage of work, that being a loss to him only (B. K. viii. 8). Self-defense is a full justification for an assault that is not continued after the necessity has ceased. But if two men strike each other at the Selfsame time, each is liable to the other, Defense a and the excess in damages must be Justifica- paid (Shulhan 'Aruk, Hoshen Mish-

of

tion.

pat, 421, 18).

Where one enters upon the grounds of another without his permission, the owner of the ground may order him off, and may even remove him by force but if he strike him or harm him otherwise than in forcing him away, he is liable like any other assailant (B. K. 48a). Should the injured party die before he recovers judgment for the assault, the right of action is cast upon his heirs; and in like manner if the assailant

die before satisfaction is

made

or before

it is

ad-

judged, the action for the wrong done may be brought against the heirs, and it may be satisfied out of the estate descended to such heirs. To this rule there is one very rare exception; namely, where one puts a disgrace upon a sleeping person (say, by exposing his nakedness), and the sleeper dies without finding it out, the action for the disgrace does not pass to his heirs (B. K. 86J). The maxim of the common law, that a felony merges the civil remedy, was also known to the RabWhen a man strikes his father or mother so as bis. to leave a mark ("habburah"), or when he wounds any one on the Sabbath, he can not be sued for compensation for he is deserving of death. While it was very unlikely that the offender would be put to death for long before the days of the Mishnah capital punishment under the Mosaic law had ceased still this excuse of the lesser offense by the greater was held good. But where the act is punishable by stripes only, such as wounding a person on the Day

—

—

of Atonement, the civil

remedy

is

available (B. K.

The payments

for

damage and



time and cost of cure, being elements sounding in money, and not in the nature of penalties, can only be determined by judges having ordination (Maimonides, "Yad," Sanh. v. 10, 17). loss of

Although the remedy for assaults was altogether pecuniary, yet to strike a fellow-Israelite was always deemed a sinful and forbidden action. As the Law strictly forbids the giving to a convicted crimipal a single blow beyond the lawful number (Deut. xxv. 3), the sages concluded that a blow given to any one, except by authority of law, was forbidden by Scripture; and they held that, though the assailant had paid all damages, he should ask forgiveness from the injured party, and that it was the duty of the injured, when earnestly entreated, not vindictively to withhold his forgiveness (B. K. viii. 7).

When damages which

usually follow a striking

without actual contact with the body of the injured person for instance, if one frighten his neighbor, or yell into his ears in such a way as to deafen him or otherwise make him ill the wrong-doer is "free from human judgment," but liable to the punishment of heaven (B. K. 91a). The passages in Scripture on which the law of Assault and Battery is grounded speak of a man and arise

—

—

his brother, or a man and his neighbor; hence they can not be and were not applied to affairs in which either party

These

Laws Not

was a

for

Gentile.

Whatever

redress

was

given in such cases by Jewish courts was only a matter of equity, or, as the Rabbis say, by reference to Prov. iii. 17, " for the sake of the ways of peace."

Gentiles,

Nearly all of the Talmudlc law collected In be found In the eighth chapter of Baba the Gemara on which runs from p. Sib to 93a. The subject is treated by Maimonides in Yad ]ia~Hazakah, Hobel u-Mazzilf, in the Tur, and in the Shulhan' 'Aruk, Hoshen Mishpat, under the title Hobel boHabcro, ch. 420-424.

Bibliography this



article Is to

Kamma,

j.

L.

sr.

N. D.

for pain are in the

nature of penalties, and can be adjudged only upon proof by witnesses. But in the absence of witnesses the assailant can, upon his own confession, be ordered to pay for loss of work and cost of cure which elements are in the nature of a debt and for the disgrace suffered, on the ground that by his own confession he publishes the humiliation of his victim (Maimonides, " Yad," Hobel u-Mazzik, v. 6, 7).

—

Only a court of "ordained " judges could try an action for injury to the person, according to the rules laid down above, and give judgment for a

sum; and as judges could not be lawfully ordained, except in the Holy Land, judgments for definite

damage and pain could not be

col-

even in Babylonia (B. K. 84«). in But, as a matter of necessity, a system Assault was worked out which soon spread Cases. over all countries in which the Jews enjoyed any sort of autonomy. When parties complained of in j uries, the j udges, after hearing their allegations and the testimony of witnesses, lected,

sum that in their opinion the assailant should pay, and, upon his refusal, would threaten indicated the

him with excommunication (" nidduy ") and this course would generally have the desired effect. But

'

viii. 3, 5).

Procedure

Asser, Carel

ASSEMBLY, THE GREAT.

See Synod, the

Great.

ASSER, CAREL: Dutch

jurist; son of Moses born at Amsterdam, Holland, Feb. He studied law and 15, 1780; died Aug. 3, 1836. philology at the Athenaeum at Amsterdam. After obtaining a doctor's degree, July 3, 1799, Asser devoted himself to the practise of law in Amsterdam; he and his friend Jonas Daniel Meyer being the first Jews to become lawyers after the establishment of the Batavian republic. The defense of a certain Mascel of Dordrecht, accused of blasphemy for having manifested doubts concerning the divinity of Jesus and Early the Trinity, brilliantly conducted by Asser and Meyer, drew upon the young Success.

Salomon Asser



men

the attention of M. C. P. van later, minister of justice.

Maanen, chief attorney and,

In spite of his absorbing professional duties, religious matters did not fail to receive Asser's considerWhen he was only sixteen, he and his father ation. shared in the founding of the Felix Libertate, a society which had for its aim the emancipation of the Dutch Jews and he was among the signers of a