A passage was quoted above,[216] prescribing imprisonment in a _kipah_ in certain cases. Where the Talmud asks what is meant by _kipah_, and R. Jehudah explains that by _kipah_ is meant a den of about five and a half feet in size,[217] it is clear that we are dealing with traditions about legal matters which had not had practical application within the memory of the Amoraim. When, further, we remember the discussions among the Rabbis themselves, such as which death penalty should go with which crime, or which would be the correct method of execution, or whether the dead body has to be hanged only in certain cases or in others also, and similar debates, it is clear that we often have to do with matters of theoretic discussion about which there was no certain tradition. In fact, in one passage, a legal decision concerning capital punishment is called a decision that will be of practical application only when the Messiah comes and the Jewish system of capital punishment will be once more in use.[218] The result, therefore, to which our investigation leads along various converging lines is, that originally the death penalty was carried out through the decisions of the court approximately according to the demands of the Bible. But at least as early as the beginning of the Christian era, modifications had arisen, particularly among the Pharisees, affecting the methods of inflicting the death penalty.[219] These modifications apparently grew out of two chief causes, (a) the desire to preserve the body from mutilation or disfigurement (possibly in part owing to the Pharisaic belief in the resurrection which had not been of weight with the Sadducees), and (b) the tendency to extend the golden rule, so as to make the death penalty as humane as possible. But the Rabbinic courts lost their jurisdiction in capital cases at the fall of the Jewish state in 70 C. E. With this went the transference of the problem of capital punishment from the realm of fact to that of legal theory, and Rabbinic, juristic imagination became free to develop the field of historical tradition, untrammeled by the restraints of practise. The compensating spiritual inbreeding, which occurred when external manifestations of Jewish national life were proscribed, resulted, in this special legal field as in all other fields of Jewish thought, in the over luxuriant development of the theory of Jewish practise. In Amoraic times, the Rabbis no longer recognised with certainty in many cases, whether a practise was old and traditional, or whether it was a comparatively new development based only on theoretic deduction. Even in early Tannaitic times, there was often uncertainty as to what was known through tradition and what was known through interpretation. This is brought out very clearly in the account of the discussion between Hillel and the Bene Bethera on the question of the sacrifice of the paschal lamb on Sabbath.[220] The Rabbis therefore