Sanhedrin 070

נושא: Sanhedrin

Sanhedrin 070

BET MIDRASH VIRTUALI

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Today's shiur is dedicated by Steven Koppel for a refuah shlemah for Tovah Yaffa bat Leah, who is apparently terminally ill with cancer.

כֵּיצַד מְאַיְּמִין אֶת הָעֵדִים עַל עֵדֵי נְפָשׁוֹת? הָיוּ מַכְנִיסִין אוֹתָן וּמְאַיְּמִין עֲלֵיהֶן: "שֶׁמָּא תֹאמְרוּ מֵאֹמֶד, וּמִשְּׁמוּעָה, עֵד מִפִּי עֵד וּמִפִּי אָדָם נֶאֱמָן שָׁמַעְנוּ, אוֹ שֶׁמָּא אִי אַתֶּם יוֹדְעִין שֶׁסּוֹפֵנוּ לִבְדּוֹק אֶתְכֶם בִּדְרִישָׁה וּבַחֲקִירָה. הֱווּ יוֹדְעִין שֶׁלֹּא כְדִינֵי מָמוֹנוֹת דִּינֵי נְפָשׁוֹת. דִּינֵי מָמוֹנוֹת, אָדָם נוֹתֵן מָמוֹן וּמִתְכַּפֵּר לוֹ. דִּינֵי נְפָשׁוֹת, דָּמוֹ וְדַם זַרְעִיּוֹתָיו תְּלוּיִין בּוֹ עַד סוֹף הָעוֹלָם." שֶׁכֵּן מָצִינוּ בְקַיִן שֶׁהָרַג אֶת אָחִיו, שֶׁנֶּאֱמַר, "דְּמֵי אָחִיךָ צֹעֲקִים", אֵינוֹ אוֹמֵר דַּם אָחִיךָ אֶלָּא דְּמֵי אָחִיךָ – דָּמוֹ וְדַם זַרְעִיּוֹתָיו. דָּבָר אַחֵר, דְּמֵי אָחִיךָ, שֶׁהָיָה דָמוֹ מֻשְׁלָךְ עַל הָעֵצִים וְעַל הָאֲבָנִים. לְפִיכָךְ נִבְרָא אָדָם יְחִידִי, לְלַמֶּדְךָ שֶׁכָּל הַמְאַבֵּד נֶפֶשׁ אַחַת מִיִּשְׂרָאֵל מַעֲלֶה עָלָיו הַכָּתוּב כְּאִלּוּ אִבֵּד עוֹלָם מָלֵא; וְכָל הַמְקַיֵּם נֶפֶשׁ אַחַת מִיִּשְׂרָאֵל מַעֲלֶה עָלָיו הַכָּתוּב כְּאִלּוּ קִיֵּם עוֹלָם מָלֵא. וּמִפְּנֵי שְׁלוֹם הַבְּרִיּוֹת, שֶׁלֹּא יֹאמַר אָדָם לַחֲבֵרוֹ אַבָּא גָדוֹל מֵאָבִיךָ. וְשֶׁלֹּא יְהוּ מִינִין אוֹמְרִים, הַרְבֵּה רְשׁוּיוֹת בַּשָּׁמָיִם. וּלְהַגִּיד גְּדֻלָּתוֹ שֶׁל הַקָּדוֹשׁ בָּרוּךְ הוּא, שֶׁאָדָם טוֹבֵעַ כַּמָּה מַטְבְּעוֹת בְּחוֹתָם אֶחָד וְכֻלָּן דּוֹמִין זֶה לָזֶה, וּמֶלֶךְ מַלְכֵי הַמְּלָכִים הַקָּדוֹשׁ בָּרוּךְ הוּא טָבַע כָּל אָדָם בְּחוֹתָמוֹ שֶׁל אָדָם הָרִאשׁוֹן וְאֵין אֶחָד מֵהֶן דּוֹמֶה לַחֲבֵרוֹ. לְפִיכָךְ כָּל אֶחָד וְאֶחָד חַיָּב לוֹמַר, בִּשְׁבִילִי נִבְרָא הָעוֹלָם. "וְשֶׁמָּא תֹאמְרוּ, מַה לָּנוּ וְלַצָּרָה הַזֹּאת? וַהֲלֹא כְבָר נֶאֱמַר, 'וְהוּא עֵד אוֹ רָאָה אוֹ יָדָע אִם לוֹא יַגִּיד' וְגוֹ'. וְשֶׁמָּא תֹאמְרוּ, 'מַה לָּנוּ לָחוּב בְּדָמוֹ שֶׁל זֶה?' וַהֲלֹא כְבָר נֶאֱמַר, וּבַאֲבֹד רְשָׁעִים רִנָּה:

How are the witnesses admonished in cases of Dinei Nefashot? They would bring them in and admonish them: "You might possibly speak from conjecture, from something that you heard, from another witness, or you might say that 'We heard it from a reliable source'. Possibly you are not aware of the fact that we shall subject your testimony to examination and scrutiny. You must understand that Dinei Nefashot is not like Dinei Mamonot. In Dinei Mamonot a person pays up and thus atones; but in Dinei Nefashot the blood of the accused and the blood of his offspring will be charged to you to all eternity. In the case of Cain who killed his brother we find it written that 'Your brother's blood cry out' and it does not say 'Your brother's blood cries out' – 'cry', not 'cries' – his blood and the blood of his offspring. (Another explanation: 'cry' [teaches that] his blood was splattered over the trees and stones.) This is why Adam was created alone: to teach that anyone who takes the life of one Jew is seen by Scripture as if he had taken the life of the whole world – and anyone who saves the life of one Jew is seen by Scripture as if he had preserved the whole world. Also, to preserve the peace between people, so that no person can say to another 'My ancestor is greater than yours'. Also, so that heretics shall not say that there are several deities in Heaven. Also to demonstrate God's greatness: a human being creates many coins from the same die and they are all identical; the Supreme King of Kings, the Holy One blessed is He, coins all people from Adam's die and not one looks like another. This is why every person must say 'The world was created just for me'. Possibly you might be wondering 'What am I getting myself into?': Scripture says: 'If he is a witness – having seen or known [of a crime] – if he does not testify…' Possibly you are wondering 'Why should we make ourselves liable for this person's life?': Scripture says: 'When wicked people die there is rejoicing'."

1:
This is a very long mishnah and, despite its superficial clarity, it presents us with several problems. Scholars are not at all certain that extraneous matter has not been introduced into the original text.

2:
We have already mentioned why it is necessary to 'admonish' – or 'threaten' – the witnesses, rather than making them swear an oath to tell the truth [see explanations and discussion that started in san059]. However, when we study our mishnah anew we also see that there is another purpose to this 'admonishing' of the witnesses: they are being reminded that they, and they alone, must take responsibility for the threat against the life of the accused. We have mentioned on several occasions that the witnesses that we are speaking of are not just testifying as to what they know: these witnesses are fulfilling the function in western law of the prosecution. The accused is only on trial for his life because these two witnesses have charged him with a capital crime. It is therefore absolutely essential that they be fully aware of the enormous responsibility that they are taking upon themselves.

3:
For the purposes of our explanations let us assume that the prisoner is accused by the witnesses of having committed a murder. The president of the court would address the witnesses before they testified, and warn them that their intended testimony may be of a kind that is inadmissible from "witnesses to the fact". Such witnesses must have warned the perpetrator that he was about to commit a capital crime, must hear him admit that he was aware of what he was doing, and must actually see the crime committed. If these conditions cannot be met a charge of murder cannot be upheld (and should be reduced to a charge of 'killing', for which the punishment is not capital.)

4:
Murder is thus effectively defined as the conscious and deliberate taking of another human life because of animus. The life of a person, even one charged with murder, cannot be taken from him simply because 'it is reasonable to assume' his guilt. It must be possible to establish his guilt beyond any doubt, and not beyond any reasonable doubt. The only way that the witnesses to the fact could testify that the accused was aware of what he was doing ("conscious and deliberate") is to hear him respond to their warning and to see him do the deed.

5:
It is obvious that such circumstances would be extremely rare (and possibly frustrating). A companion work to the Mishnah, the Tosefta, states that the witnesses cannot testify that

we saw the accused chasing after the the victim with a sword in his hand. The victim entered a shop and the accused entered the shop after him. We followed them in only to find the victim dead and the bloody sword in the hands of the accused. You might ask 'who else could possibly have killed him?' Shim'on ben-Shataĥ says: By golly, I once saw just such a one chasing after another with a sword in his hand. The victim tried to escape by going into a ruin and the killer went in after him. I followed only to find the one killed and the other with the bloodied sword in his hand. I said to him, "You wicked man! Who killed this person?! … But what can I do since I cannot testify against you … [Tosefta, Sanhedrin 8:3]

Shim'on ben-Shataĥ was the president of the sanhedrin during the reign of Queen Salome Alexandra [76 – 67 BCE].

6:
These rules were doubtlessly created in order to severely restrict the incidence of judicial slaughter, so prevalent in the plain text of the Torah. The text was subjected to logical interpretation [Midrash] and the Halakhah is the result. A oft-quoted mishnah makes the situation clear:

A court that executes a person once in seven years is called "vicious". Rabbi El'azar ben-Azaryah says – once in seventy years! Rabbi Tarfon and Rabbi Akiva say – had we been members of such a court no person would ever have been executed! Rabban Shim'on ben-Gamli'el says – and they would have been the cause for the growth in the number of murderers in Israel! [Mishnah Makkot, 1:10]

7:
Our present mishnah makes it clear that several kinds of evidence were inadmissible: witnesses to the fact could not testify from conjecture – even from so plausible a conjecture as reported by Shim'on ben-Shataĥ above ('who else could possibly have killed him?) Hearsay evidence is unacceptable ('someone told us that he did it'). Our mishnah prohibits evidence quoted from the mouth of "another witness" in another case before another court. The president of the court must also warn the witnesses that their evidence will be subjected "to examination and scrutiny". These two terms are, in fact, technical, as will be seen in the next chapter, and they refer to two different avenues of cross-examination called in Hebrew derishah and Ĥakirah. The court must also make sure that the witnesses are aware that the price to be paid should their evidence secure a conviction would be the death of the accused and not just a monetary fine as in Dinei Mamonot. This is amplified in the remainder of this very long mishnah, which will be the subject of our next shiur as well.

Shabbat Shalom to everybody.

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