Sanhedrin 115

נושא: Sanhedrin

Sanhedrin 115

BET MIDRASH VIRTUALI

וְאֵלּוּ הֵן הַנִּשְׂרָפִין: הַבָּא עַל אִשָּׁה וּבִתָּהּ, וּבַת כֹּהֵן שֶׁזִּנְּתָה. יֵשׁ בִּכְלָל אִשָּׁה וּבִתָּהּ: בִּתּוֹ, וּבַת בִּתּוֹ, וּבַת בְּנוֹ, וּבַת אִשְׁתּוֹ, וּבַת בִּתָּהּ, וּבַת בְּנָהּ, חֲמוֹתוֹ, וְאֵם חֲמוֹתוֹ, וְאֵם חָמִיו.

The following are [executed] by burning: One who copulates with a woman and also with her daughter, and the daughter of a Kohen who is promiscuous. The following are subsumed under [the heading of] "a woman and her daughter": one's granddaughter (from son or daughter), one's stepdaughter, one's stepdaughter's daughter, one's mother-in-law, her mother and the mother of one's father-in-law.

1:
In most editions of the Mishnah the first Mishnah of Chapter Nine is very long. I have used here the division of that mishnah into smaller units as given in the Babylonian Talmud, but have labeled it "first part" so as not to cause confusion for those using a standard Mishnah text.

2:
The first mishnah of Chapter Seven of our Tractate stated that:

Four modes of execution are in the jurisdiction of the court: stoning, burning, decapitation and strangulation.

The gory details of execution by stoning had already been given, and in the two subsequent mishnayot the gory details of execution by the other three modes. The fourth mishnah of Chapter Seven listed eighteen offences for which the punishment was death by stoning. From that point until the end of Chapter Eight we followed a detailed analysis of all those eighteen cases. Our present chapter will now do the same as regards two of the three other modes: burning and decapitation. (Death by strangulation is the subject of Chapter Eleven.)

3:
Before we continue it might, perhaps, be useful to remind ourselves of the "gory details" of execution by burning. The details were given in Chapter Seven, Mishnah Two:

The process of burning: the condemned person would be sunk up to his knees in midden. A strong scarf wrapped in a soft one was then wound around his throat. Each [witness] would pull in a different direction until he opened his mouth. A fillet of lead was then set alight and thrown into his mouth; it would then descend into his inwards and burn them up. Rabbi Yehudah says that if he died at their hands the commandment of burning had not been fulfilled; the must prise open his mouth, light the fillet and throw it into his mouth so that it could descend into his inwards and burn them up. Rabbi Elazar ben-Zadok tells of one priest's daughter who was guilty of fornication who was surrounded by branches and twigs and [thus] burned. They retorted that this happened because the court at that time was not proficient.

4:
Only two offences incur death by burning and both have their origin in the Torah, where the modes of execution is specific. Leviticus 18:17 (which is traditionally read at the Afternoon Service of Yom Kippur) reads:

You shall not expose the genitalia of both a woman and her daughter.

(The phrase used her recurs many times in that section of the Torah and is an idiomatic euphemism. Later, in 20:14, the Torah is more specific:

When a man takes a woman and her mother this is lechery: they shall burn both him and her with fire.

The second offence is to be found in Leviticus 21:9, which reads:

When a priest's daughter starts a-whoring she is disqualifying her father: she shall be burned with fire.

5:
Let us deal first with the Priest's daughter. The Gemara on our Mishnah does not elaborate (though there is extensive discussion earlier on, folios 50 onwards). However, we can summarize the discussion from the comments of the classical commentators. Rashi [Rabbi Shelomo Yitzĥaki, Western Europe, 11th century CE] in his Torah commentary states that all the sages are in agreement that the Torah here is not referring to an unmarried daughter of a Kohen; they are, however, in disagreement as to whether the promiscuity which lies at the basis of this law refers to a woman who is married or whether it includes even a woman who is affianced, but not yet married. Ibn-Ezra [Rabbi Avraham ben-Ezra, Western Europe and North Africa, 12th century CE] seems to imply that the verse intends to include also a widow or a divorcee. (This hardly seems likely when we refer to the original Midrash Halakhah [] which clearly implies that the verse is speaking of a woman whose husband is still alive and married to her: Zikkat ha-Ba'al, a conjugal relationship.) Thus we may summarize that the daughter of a Kohen who has a promiscuous relationship with a man other than her husband during the lifetime of their marriage is condemned to death by burning. (In Chapter Eleven, Mishnah One, we shall learn that her paramour is to die by strangulation.) Of course, we must always bear in mind that "due process of law" was required in all these cases: two witnesses, prior warning and so forth.

6:
The other offence which is punishable by burning is the case of the man who copulates with a woman and her daughter. The Gemara [Sanhedrin 75a] makes clear that it makes no difference whether the man is married to the mother or the daughter: the fact that he is married to one of them precludes the possibility of copulation with the other.

7:
The Seifa of our mishnah teaches that the list of women involved is larger than the text of the Torah seems to imply. Some of these extensions are logical. If we assume that Re'uven is married to Sarah then he may not copulate with Sarah's daughter (regardless of whether she is his own daughter as well or the daughter of Sarah by some other man). He may not copulate with his granddaughter, who is deemed to be a lineal extension of his daughter; even his son's daughter is forbidden him since she is considered a lineal extension of his wife through her son. The same reasoning prohibits his copulation with his stepdaughter, since she is a lineal extension of his wife, and, in the reverse direction, his wife's mother is forbidden him for the same reason. The mother of his mother-in-law is thrown in for good measure, which would imply that in theory his great-granddaughter is also forbidden him. One other woman is forbidden him and that is the mother of his father-in-law, for a reason which parallels the prohibition of his son's daughter.

Orin Rotman writes concerning the previous mishnah:

It seems to me that chapter eight, mishna seven would have been the appropriate place for the tannaim and Rabbi to deal with the extra judicial execution exercised by Pinchas. I might have expected that situation to be expounded on, considering it is an action that was explicitly sanctioned by Hashem, and one would therefore imagine that rules of conduct could and would and must be adduced from that example in conjunction with the concept of 'a human life is saved at the cost of a human life' or in the context of projected forfeiture of life a la the rebellious son. Even distinguishing it in the mishna would have been more comfortable then leaving it out. Is there an explanation?

I respond:

I disagree that the last mishnah of Chapter Eight would have been the most appropriate place to deal with the action of Pinĥas. The cases mentioned in mishnah 8:7 are all offences which a Court of Twenty-Three is competent to try. The onus of the mishnah was to indicate that passers-by have the duty to prevent these offences taking place: if you wish, it gives them the right to act thus preventing the offence and thus obviating the trial. The action of Pinĥas is seen by the sages in a different category. The episode to which Orin is referring is to be found in the Torah: Numbers 25:1-18. The sages see this as an example of someone taking the law into his own hands when there is no court competent to try the case. Such cases are treated in the last mishnah of our present chapter and there is extensive and interesting Gemara on the subject. It would be foolish of me to anticipate that discussion now, so let us just exercise patience.