of the Rabbinical Assembly in Israel


Bet Midrash Virtuali
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The King may not sit in judgment nor may he be tried; he may not testify nor may he be the subject of accusatory testimony; he may not perform the ceremony of 'Ĥalitzah' nor his wife may be involved in this same ceremony; he may not contract a levirate marriage nor may his childless widow may be taken in Levirate marriage by her brother-in-law. Rabbi Yehudah says that if he elects to perform the ceremony of 'Ĥalitzah' or to contract a levirate marriage this is to his credit. To this the [rest of the] sages responded that we do not listen to the king's views in this matter. No one may marry the late king's widow. Rabbi Yehudah says that a king may marry another king's widow, for we find that David married Saul's widow, as it says: "And I gave into your bosom your master's household and your master's wives".

EXPLANATIONS (continued):

Our mishnah states that a king "may not testify nor may he be the subject of accusatory testimony". We have already explained (in connection with the previous mishnah) that "accusatory testimony" is not the same as "testifying" in a Western court today. According to the rabbinic system a person could only be brought to trial by two witnesses who were present at the moment the deed was done. (We shall expatiate on this later on in the Tractate.) Thus, the witnesses who offer "accusatory testimony" are in fact acting as the prosecution in western parlance. Given the principle of reciprocity to which we have already referred in connection with the High Priest, if a king is excused the duty of testifying he must also be free from the possibility of prosecution. The reason why it was felt necessary to excuse all kings "of Israel" from the burden of testimony was because of the incident which involved Yannai Alexander, an incident that we described in detail in our last Shiur. Whether or not kings of the Davidic line are so excused is a point of discussion among the sages. We shall return to this later.

However, lest the impression be given that the sages made the decision of not imposing the rigours of the law upon heads of state and government purely on the basis of one incident, let me recall a similar incident that occurred some fifty years later. This incident is not recorded by the sages, but it is recorded by Yosef ben-Matityahu (aka Flavius Josephus) in his "Antiquities of the Jews" [14:9:3-5].

One of Yannai's sons, Yoĥanan Hyrkanos II (named for his grandfather, apparently) was the nominal head of state. He had taken as a personal advisor one Antipater. (Antipater's father had been forcibly converted to Judaism by Yoĥanan's grandfather as part of his general coercion of the whole of the Edomite population to Judaism. Whether or not the Edmomites recognized this conversion is moot; the sages did not recognize it.) Antipater had used the power of nepotism to get his sons installed in key positions and the youngest, Herod, had been appointed Governor of the Galil. Galilee at that time was rather like the American wild west of the last century, but the ambitious Herod lost no time in hunting down and arresting the chief bandit, one Hezekiah, whom, together with his henchmen, he then summarily executed without benefit of trial. Yoĥanan Hyrkanos was getting very fidgety - as well he may - at the brazen use of blatant power that the young Herod was displaying. He rightly feared for himself and his regime. Having been persuaded that Herod's act was illegal he summoned Herod before the Sanhedrin in Jerusalem to stand trial for the murder of Hezekiah and his colleagues. Herod, being of half a mind to laugh it off, was persuaded in his turn to turn up for the trial. On the appointed day the judges entered the courtroom to find it packed by Herod's soldiers with arms drawn. Herod himself appeared dressed in imperial robes, and the justices got the meaning of his not very subtil message very quickly. The court was about to absolve Herod when one of their number stood up to address the court. The name of this sage was Shammai,

a righteous man who therefore knew no fear. He said [according to Josephus], 'Your Majesty and members of the Sanhedrin: I cannot recall, nor do I think that you can, that at any time in the past a person who was summoned to appear before us did so in such a manner! It matters not who he might be: any person appearing before this Sanhedrin to be judged would stand before us in respect and would have the demeanour of a person fearful for his life who was begging for mercy. He would be unshaven and wearing black. But this young upstart, Herod, who is charged with murder and has been summoned to appear before us on that charge, stands here wearing a purple robe, crowned with an olive-wreath, hair barbered and surrounded by armed men who are to kill us if we find him guilty at law, and to remove him safely from here if that fails. But I have no complaint against Herod if he prefers the practical over the legal! My complaint is against you, his judges and against you, Your Majesty, for giving him such licence. I want you to know, as God is great, that this man whom you wish to free this day will take his revenge on you all and on the king...'

Shammai, of course, was not wrong. Herod did usurp power in 40 BCE and ruled, a cruel and pitiless despot until 4 BCE. He killed off all surviving members of the Hasmonean family, and also killed off many members of his own family whom he suspected of planning his own assassination - including Mariamne his beloved wife, a Hasmonean princess. The carnage in this family was so great that the Roman Emperor Augustus was once heard to remark at a dinner party that he "would rather be a pig in Herod's sty than a member of his family". When asked to, he explained that being (nominally) a Jew Herod would not eat pork; therefore the pigs in his sty could expect to live out their natural life - which could hardly be said for the members of his family! According to Josephus there was only one person that Herod feared, and that was the one person who stood up to him: Shammai. (It has given me no small amount of pleasure to recount this story, since I believe that it sets Shammai in a more positive light than the one we usually feed to our children (based upon one story in the Talmud) that Hillel was the nice guy and Shammai was the one who was always losing his temper.)

It thus transpires that the decision of the sages not to involve heads of State and heads of government in trials at law was actually "real politik": they decided not to enter a battle which they knew they could not win.

To be continued:

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