The only corporal punishment named in the Pentateuch is that of stripes; and the limitations put upon the judges are that they must cause the culprit to be beaten in their presence, and that the number of stripes imposed must not exceed forty (Deut. xxxv. 2, 3). Wherever the written law merely forbids an act, or, in the language of the sages, wherever it says "Thou shalt not," and does not prescribe any other punishment nor any alternative, a court of three judges may impose stripes as the penalty for wrong-doing. The same punishment may be inflicted in the case of transgressions which the Torah decrees should be punished with excision. He who takes "the dam with the young," says the Mishnah, with reference to the finder of the bird's nest (Deut. xxii. 6), "must let her go, but may not be flogged." R. Judah's opinion to the contrary is overruled with the statement, "This is the general principle: Any command reading 'Thou shalt not,' coupled with 'Arise, do!' is not punishable with stripes" (Mak. iii. 4; Ḥul. xii. 4).
This rule disregards the thief, the robber, the embezzler, the seducer, the ravisher of an unbetrothed damsel; the law imposes some other punishment upon each of these. In one case, that of the man who "utters an evil report" regarding his newly married wife, the text (Deut. xxii. 18, 19) itself imposes the double punishment of both stripes and a money payment. The "plotting witness" (see Alibi) is flogged for violating the command "Thou shalt not bear false witness" only when the party against whom he testifies would have been flogged, or when the identical punishment which he might have brought upon his victim can not be inflicted.
The Mishnah (Makkot) enumerates fifty offenses as deserving stripes, but this enumeration is evidently incomplete. Thus, the two cases expressly mentioned in Scripture, that of the man who "utters an evil report," and that of the bondwoman who is betrothed to one man and cohabits with another (Lev. xix. 20), are not in the list. Maimonides ("Yad," Sanhedrin, xix.) endeavors to give a full enumeration of all the offenses in this class, the number of which he carries up to two hundred and seven, eighteen being offenses of commission which the Scripture punishes with excision. The last three in his list are cases in which the king (1) takes too many wives, (2) accumulates too much silver and gold, or (3) collects too many horses.
The discussion in Mak. iii. as to when one may, for the same act, incur the punishment of stripes for several reasons, and the discussion of the further question as to when a continuous violation of a law subjects to one, and when to several, inflictions, may be here omitted. Usury is not punished with stripes, for the money paid may be recovered by the debtor, which recovery is in the nature of a punishment; and in the absence of express words there can be only one punishment for the same act.
It is well known, both from the Mishnah (Mak. iii. 10) and from the New Testament (II Cor. xi. 24), that no more than thirty-nine stripes were ever administered; this merciful regulation was, of course, derived in some way from the letter of Scripture. Only excess is forbidden, not diminution; hence before determining the number of stripes, the culprit's ability to bear punishment was estimated. The number inflicted was always a multiple of three—two stripes on the back and one on the breast; so that, if the estimate was twenty stripes, only eighteen were inflicted. If, after the infliction of part of the stripes, the judges came to the conclusion that to continue would endanger the culprit's life, the beating came to an end, and he was free from further punishment. If a smaller number than thirty-nine had been determined upon, the judges could not administer more even if they found that the original number caused no suffering to the culprit (Mak. iii. 10 and Gemara ad loc.).
The culprit was bound with his hands to a pillar, leaning forward (the text says "shall cause him to lie down"); the "overseer of the community" (the Mishnah uses here a term not found elsewhere) takes hold of his clothes and pulls them down so as to lay bare his breast and back. The strokes are given with a strip of calfskin, doubled twice; the overseer holds it in one hand, but strikes with all his force. A bystander recites, by way of count, three verses, of tḥirteen words each, the third verse being Ps. lxxviii. 38 ("But he, being full of compassion, forgave their iniquity," etc.). Should the pain force an excretion, the beating must cease, lest "thy brother become vile in thy eyes." Should the culprit die under the lash, the overseer is free from guilt; but if by miṣtake he has given even one stroke more than the number determined, he is guilty of involuntary manslaughter, and should be exiled to a city of refuge. The culprit who has undergone the punishment of stripes has not only earned thereby forgiveness of the sin for which he has suffered, evenwhen excision has been pronounced against it (Mak. iii. 15), but he is restored also to those civil rights, such as the right to testify as a witness or to clear himself by his oath in a lawsuit, which he may have forfeited by the crime ("Yad," Ṭo'en we-Niṭ.'an, ii. 10)."Makkat Mardut."
The courts of Israel ceased, long before the destruction of the Temple, to try cases involving the death-punishment; but they continued to condemn to stripes till the fall of the Temple, and, in many places in Palestine, much longer. But as this could be done by ordained judges only, the courts of the Jewish colonies in Babylonia and elsewhere, though exercising much authority, could not sentence a man to stripes "according to the Torah." Hence, as a necessity, the Rabbis undertook to impose a "beating for rebellion" ("makkat mardut"), sometimes for capital, sometimes for other, offenses against the Mosaic law; sometimes for disobedience to "institutions of the scribes"; often in order to compel the performance of a duty; and all this without the judicial formalities which surrounded the infliction of the forty stripes. The custom is fully explained in the responsa of R. Naṭronai, a Babylonian chief rabbi, or gaon, in the eighth century.