Comentario sobre Sanedrín 4:10

אחד דיני ממונות ואחד דיני נפשות – And regarding capital cases, it is written (Deuteronomy 13:15): “ You shall investigate and inquire [and interrogate thoroughly]…,” and this is the law of the Torah. But the Sages said that we do not lengthen in investigations and inquiries in monetary cases so that we don’t shut the door before borrowers, other than if the Jewish court saw that the proceedings in court which bear evidences of fraudulent claims or statements (see Sanhedrin 32a). For investigations and inquiries are the question in its own accord, such as: “how much [money] did you lend him?” and “when did you lend him?” and “for what purpose did you lend him?,” and “in what place did you lend him?” But there is another type of question which is called examination and it is not related to the matter, such when they ask him: “What was he wearing? Black utensils or what utensils? Was he standing or sitting at the time you lent him?

Introduction The mishnah which we will learn today discusses the differences in how a court acts during non-capital trials (cases entailing penalty not by death) and capital trials. As we will learn in our mishnah and also in mishnah five of this chapter the Rabbis took capital cases very seriously and wanted to ensure as much as possible that no person would be wrongfully executed.

פותחים – the give-and-take of the judgment case, whether for acquittal or for guilt.

Our mishnah opens with the one similarity between capital and non-capital cases: they both require interrogation of the witnesses. We will learn what questions were asked of the witnesses in chapter five. The mishnah then lists eight differences between capital and non-capital cases.

מחזירין – they reverse the decision after they have completed the deliberations and knew that they had erred.

Capital cases require twenty three judges, while non-capital cases require only three. This law was already learned in chapter one.

ואין הכל מלמדין חובה – that if one of he students said: “I am able to argue about him that he is guilty,” we do not listen to him.

In non-capital cases the judges may begin their deliberations either with points in favor or points against the accused. Capital cases must begin with points in favor of the accused.

דנים ביום וגומרין בלילה – As it is written (Exodus 18:22): “Let them judge the people at all times…” and it is written (Deuteronomy 21:16): “When (i.e., “on the day”) he wills the property to his sons, [he may not treat as first-born the son of the loved one in regard of the son of the unloved one who was older].” In what manner? The daytime is the beginning of the proceedings and the night time is the conclusion of the judgment.

Non-capital cases require a majority of one to either convict or acquit, while capital cases require a majority of two to convict and one to acquit. This law was also already learned in chapter one, mishnah six.

דנין ביום וגומרין ביום – As it is written (Numbers 25:4): “[The LORD said to Moses, ‘Take all the ringleaders] and have them publicly impaled before the LORD (i.e., during the sunlight), [so that the LORD’s wrath may turn away from Israel.’]”

If new evidence should arise non-capital cases may later be reversed either from conviction to acquittal or vice versa. Capital cases may only be reversed from conviction to acquittal. Once a person is acquitted of a capital crime he may no longer be tried.

גומרים בו ביום בין לזכות בין לחובה – As Scripture states (Isaiah 1:21): “[Alas, she has become a harlot, the faithful city] that was filled with justice, where righteousness dwelt – [but now murderers].”

In non-capital cases anyone may speak in favor or against the accused, even the disciples of the Sages who are not counted amongst the judges. (We will learn more about them in mishnah four of this chapter). In capital cases the disciples may speak in favor of the accused but not against him.

לפיכך אין דנים לא בערב שבת – as it will be found that the completion of the legal proceedings will be on Shabbat [proper] and to delay it until after Shabbat is impossible because of the delay in executing judgment [is illegal], and to judge him on that [selfsame] day is impossible, for the four forms of capital punishment do not override the Sabbath, as it says (Exodus 35:3): “You shall kindle no fire throughout your settlements on the sabbath day,” it taught regarding those who were liable for burning, that we do not burn them on the Sabbath, and this same law applies to the other forms of capital punishment.

In non-capital cases a judge who argued in favor may later argue against, if he is convinced by the arguments of his colleagues. In capital cases once one has argued in favor he may no longer argue against.

The verdict of a non-capital case may be reached at night, whereas the verdict of a capital case must be reached during the day.

Non-capital cases may be completed in one day, but capital cases require the judges to wait overnight before rendering their decision. Since this is so, capital cases are not adjudicated on the day before the Sabbath or a Festival, for if they were the punishment would have to be carried out on the Sabbath or Festival and it was considered to be a breach of Sabbath or Festival law to execute on those days. Furthermore, they didn’t want to try someone on Friday, pronounce him guilty on the Sabbath and have to wait until Sunday to execute him. Such a wait would prolong the psychological pain of the person about to be put to death.

Questions for Further Thought:
• Why did the Sages insist on these differences between capital and non-capital cases? What is their function?

מן הצד – from the smallest in wisdom who were sitting on the side, as Scripture states (Exodus 23:2): “…you shall not give perverse testimony/"לא תענה על-רב" in a dispute…” It is written as "רב" [even though in the fuller written version it is pronounced as "ריב" ) – meaning do not pervert testimony of the expert assessor at court to whom questions of law are referred/the distinguished instructing judge and pervert his words, therefore, we do not listen to his words other than at the conclusion [of the proceedings].

In non-capital cases and those concerning uncleanness and cleanness [the judges declare their opinion] beginning from the eldest, but in capital cases they begin from [them that sit at] the side.
All are qualified to try non-capital cases, but not all are qualified to try capital cases, only priests, levites and Israelites that may give [their daughters] in marriage to priests.
Mishnah two contains more information regarding the differences between capital and non-capital cases.
This mishnah contains an additional two differences between non-capital cases and capital cases. (We learned of eight differences in mishnah one.)
In all types of non-capital cases the eldest judge may state his opinion first, but in capital cases the decision stating process begins from the side of the room, where the younger members of the court would sit. This is to prevent the youngest judge from being unduly influenced by the opinion of the eldest judge.
A person of any lineage may judge non-capital cases, even mamzerim (those born of illicit unions) and even converts. However, only those who can marry their daughters to priests, meaning priests, levites and Israelites can judge capital cases. This law certainly reflects the import that the Rabbinic society ascribed to familial relations.

הכל כשרים לדון – and even a convert [may judge monetary cases], and he whose mother is from Israel, and an illegitimate person/Mamzer is also fit to judge monetary cases.

ואין הכל כשרים לדון דיני נפשות – As it is written (Exodus 18:22): “…Make it easier for yourself by letting them share the burden with you,” those that are similar to you. Just as Moses our teacher is of distinguished birth/legitimate descent, so to the Jewish court must be of distinguished birth/legitimate descent.

כחצי גורן עגולה כדי שיהו רואים זה את זה – As Scripture states (Song of Songs 7:3): “Your navel is like a round goblet…” [The words] "שררך אגן"/”your navel is like” – refers to the Sanhedrin which sits in the navel of the world and defends the entire world, and it is similar to a goblet, as they sit in a circle like a half-moon. The Aramaic translation of ירח/moon is סיהרא /moonlight. But in a complete circle they do not sit because the litigants and the witnesses need to enter and to speak in the presence of everyone.

Introductio Mishnah three begins to discuss the physical arrangement of the sanhedrin, the scribes who would record the decisions and the disciples of the Sages who observed the proceedings and learned.
The Sanhedrin was arranged like the half of a round threshing-floor so that they all might see one another.
Before them stood the two scribes of the judges, one to the right and one to the left, and they wrote down the words of them that favored acquittal and the words of them that favored conviction. Rabbi Judah says: “There were three: one wrote down the words of them that favored acquittal, and one wrote down the words of them that favored conviction, and the third wrote down the words of both them that favored acquittal and them that favored conviction.
The sanhedrin of twenty three that would try capital cases and the sanhedrin of seventy one would sit in a half circle. This was the seating arrangement that would best allow all of the judges to see each other. A full circle would mean that the one testifying before the court would have his back to some of the judges.
The second half of the mishnah describes the court stenographers. According to the first opinion, there were two scribes who recorded the court procedure, one which recorded the opinion of those that favored acquittal and one those that favored conviction. Rabbi Judah claims that there was a third scribe who recorded all of the opinions. In this way there would be two copies of all of the decisions made.

רבי יהודה אומר: שלשה היו – in order that there would be two witnesses for those who acquit and two witnesses for those who declare guilty.

ושלש שורות – and each row [consists] of twenty-three Sages, lest the judges should dispute and there would be a majority of those who declare guilty and a minority who acquit, and giving a verdict according to the majority of votes for evil cannot be by one, as it is written (Exodus 23:2): “You shall neither side with the mighty to do wrong…,” and you need to add two [judges] at a time, until [one reaches] seventy-one [total judges], for at no time does one add on to the [number of] judges to be more than seventy-one; therefore, one must place before them forty-eight to complete [the number] of seventy-one, and it is not the way of the world to make the rows of the students greater than that of the judges. Therefore, we make three rows.

And there were three rows of disciples of the Sages who sat before them, and each knew his proper place.
If they needed to appoint [another as a judge] they appointed him from the first row, and one from the second row came into the first row, and one from the third row came into the second row, and they chose another from the congregation and set him in the third row.
He did not sit in the place of the former, but he sat in the place that was proper for him.
Mishnah four discusses the disciples who sat in front of the Sages in the Sanhedrin and the procedure for a disciple’s appointment to the court.
This mishnah describe the seating arrangement of the disciples of the Sages (talmidei hachamim) who would sit and observe the proceedings of the Sanhedrin. There were three rows of official disciples, those waiting in the ranks to one day become judges. This was somewhat of an apprenticeship. If one of the judges had to leave or died, one of the disciples would take his place. The disciples themselves sat in rows according to their rank and when one would move up to be a judge, everyone behind him would move up in place. When the one from the second row moved up to the first, and the one in the third moved up to the second, and the one from the congregation moved up to the third, they would not sit in the beginning of the row but rather at the end of the row, which was their proper place.

וכל אחד מכיר את מקומו – according to the order of their wisdom we place them [in seats]; therefore, each one must know his place.

הוצרכו לסמוך – for example, if one of the judges died.

ולא היה יושב במקומו של ראשון – the one who was chosen from the community does not sit in the place of the first [judge], ut rather in the place that is appropriate for him at the end of the third row, for the least of the students who are in the row are greater than the best of the community.

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מאיימין על העדים – that they will not testify falsely

Introduction Our mishnah begins with a description of the warning that the judges would give to the witnesses in a capital case. The mishnah then continues with a discussion of the uniqueness of every human being and the consequential extreme severity of capital punishment.

מאומד – that the opinion inclines that it is so.

How did they admonish witnesses in capital cases? They brought them in and admonished them, [saying], “Perhaps you will say something that is only a supposition or hearsay or secondhand, or even from a trustworthy man. Or perhaps you do not know that we shall check you with examination and inquiry? Know, moreover, that capital cases are not like non-capital cases: in non-capital cases a man may pay money and so make atonement, but in capital cases the witness is answerable for the blood of him [that is wrongfully condemned] and the blood of his descendants [that should have been born to him] to the end of the world.” The mishnah begins with an exhortation made by the judges to the witnesses before they testify. The judges warn the witnesses of the severity of their testimony and they warn them that secondhand testimony, even if it was heard from a reliable source is inadmissible. The judges also remind the witnesses that they will be examined carefully. The judges then warn the witnesses that the consequences of executing a wrongfully accused person are extremely serious and indeed eternal. By testifying falsely against a person and thereby leading to his execution the witness is not only killing the accused himself, but is in essence eliminating all of his future descendants.

דיני ממונות – if he testified to obligate this one for money which is not according to the law, we cause him return it (i.e., the money) and he is forgiven.

For so have we found it with Cain that murdered his brother, for it says, “The bloods of your brother cry out” (Gen. 4:10). It doesn’t say, “The blood of your brother”, but rather “The bloods of your brother” meaning his blood and the blood of his descendants. Another saying is, “The bloods of your brother” that his blood was cast over trees and stones. The mishnah proves its point, that killing one person is like killing all of his future descendants, by using a midrash on God’s words to Cain after he killed Abel, “The bloods of your brother call out”. The midrash is based on the fact that God uses the plural “bloods” instead of blood. This is to teach us that Cain killed not only Abel but all of Abel’s descendants as well. The mishnah then proceeds with an additional interpretation of “the bloods”. According to this interpretation God uses the plural because Abel’s blood was strewn in many places. This last note is obviously a late gloss interpolated into the mishnah.

לפיכך נברא יחידי – to show you that from one person the fulness of the world is settled [by humans].

Therefore but a single person was created in the world, to teach that if any man has caused a single life to perish from Israel, he is deemed by Scripture as if he had caused a whole world to perish; and anyone who saves a single soul from Israel, he is deemed by Scripture as if he had saved a whole world. Again [but a single person was created] for the sake of peace among humankind, that one should not say to another, “My father was greater than your father”. Again, [but a single person was created] against the heretics so they should not say, “There are many ruling powers in heaven”. Again [but a single person was created] to proclaim the greatness of the Holy Blessed One; for humans stamp many coins with one seal and they are all like one another; but the King of kings, the Holy Blessed One, has stamped every human with the seal of the first man, yet not one of them are like another. Therefore everyone must say, “For my sake was the world created.” The mishnah now proceeds with four different reasons why God at first created only one human being. The first reason is that it was meant to teach us that one human being is in and of himself or herself an entire world. Therefore, one who kills another person it is as if he destroys an entire world and one who saves another person it is as if he saves an entire world. [This line may be familiar from the beginning of Schindler’s List. It is probably one of the more famous lines in the Mishnah]. The second reason is so that people will not brag about their lineage. Since we all come from the same person, no one can say “my father is greater than yours.” The third reason is to prove to the heretics that there is only one God. If more than one person had been originally created people might claim that each God created his own human being. The fourth reason is to show the greatness of God, that although God created only one human, and each subsequent person is therefore stamped with Adam’s genes, no two people look or are alike. This teaches us that each person must say that for his/her sake the world was created.

רשויות הרבה – There are many gods and each one created his own [world].

And if perhaps you [witnesses] would say, “Why should we be involved with this trouble”, was it not said, “He, being a witness, whether he has seen or known, [if he does not speak it, then he shall bear his iniquity] (Lev. 5:1). And if perhaps you [witnesses] would say, “Why should we be guilty of the blood of this man?, was it not said, “When the wicked perish there is rejoicing” (Proverbs 11:10).] Finally, the mishnah returns to the exhortation that the judges give to the witnesses. After having warned them of the dire consequences of false testimony there is fear that they will not want to testify at all. Therefore they remind the witnesses that one who truly knows testimony and does not bring it to the court is considered to be a sinner. According to the Torah a person has a religious obligation to testify if he has seen a crime. Finally, although the Jewish law abhors the wrongful execution of a person, the rightful execution improves the world. By testifying faithfully against a person who has truly committed a crime, the witnesses are bringing much needed justice into the world.

מה לנו ולצרה הזאת – to put our heads in this worrisome activity, and even on the truth.

והלא כבר נאמר הוא עד – and you are obligated to state what you have seen.

ושמא תאמרו מה לנו לחוב – to become liable for the blood of this one. It is more pleasant for us to stand without having to tell.

הרי הוא אומר ובאבוד רשעים רנה – and if he is wicked, there is no further transgression at all.

...11 - 'For me, etc' - As if to say, "I am as important as a whole world" ...