Commentaire sur Arakhin 1:4
הָאִשָּׁה שֶׁהִיא יוֹצְאָה לֵהָרֵג, אֵין מַמְתִּינִין לָהּ עַד שֶׁתֵּלֵד. יָשְׁבָה עַל הַמַּשְׁבֵּר, מַמְתִּינִין לָהּ עַד שֶׁתֵּלֵד. הָאִשָּׁה שֶׁנֶּהֶרְגָה, נֶהֱנִין בִּשְׂעָרָהּ. בְּהֵמָה שֶׁנֶּהֶרְגָּה, אֲסוּרָה בַהֲנָיָה:
Si une femme est sur le point d'être exécutée, ils ne l'attendent pas jusqu'à ce qu'elle accouche. Mais si elle s'était déjà assise sur le tabouret, ils l'attendent jusqu'à ce qu'elle accouche. Si une femme est exécutée, on peut utiliser ses cheveux. Si un animal a été exécuté, il est interdit d'en faire un quelconque usage.
Bartenura on Mishnah Arakhin
אין ממתינין לה עד שתלד – for you might have thought that offspring, the monies belong to the husband, as it is written (Exodus 21:22): “the one responsible shall be fined according to the woman’s husband may exact from him.” But we don’t cause him to lose, as it comes to teach us as it is written (Deuteronomy 22:22): “both of them – the man and the woman with whom he lay – shall die,” also including the offspring.
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English Explanation of Mishnah Arakhin
Introduction
Since yesterday’s mishnah dealt with the status of someone who was about to be executed, our mishnah continues to provide some information in this subject. It has nothing to do with evaluations.
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Bartenura on Mishnah Arakhin
ישבה על המשבר – it is the place of sitting for the woman in labor is called משבר/the travailing stool.
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English Explanation of Mishnah Arakhin
If a woman is about to be executed, they do not wait for her until she gives birth. The rabbis considered delaying execution to be cruel to the executed person. The ideal was to sentence the person and execute them immediately so that they would not have to wait around a long time contemplating their death. We should remember that in order to sentence someone to death, the proof had to be overwhelmingly certain. In rabbinic law, a conviction would almost never be overturned, and therefore, it would be cruel to delay carrying out the sentence. Our mishnah teaches that this is so even for a pregnant woman. While this may seem cruel, it is in essence stating that the woman takes precedence over her fetus, which is not yet considered to be a full “life.”
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Bartenura on Mishnah Arakhin
ממתינין לה עד שתלד – for since it (i.e., the fetus) is uprooted/removed to depart, it is another body and is not like the body of the mother.
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English Explanation of Mishnah Arakhin
But if she had already sat on the birthstool, they wair for her until she gives birth. However, if she has already begun to have contractions, and is sitting on the birthstool to give birth, they must wait until she gives birth to execute her. It seems that at this point the fetus is close enough to being an actual human being, that it would not be legal to execute it with the mother.
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Bartenura on Mishnah Arakhin
נהנין בשערה – it is not an actual hair that is stated, but rather a wig that she had from the hair of another woman tied to her hair. And especially when she said [to them]: “Give it to my daughter or to so-and-so (i.e., another woman), for since she said, “Give it,” she revealed her intention that it is not appropriate for her that it would be like her body to prohibit it, and when it is taken from a living person it is similar. But for another matter, it is prohibited, for the strangeness of the dead is prohibited to derive benefit from it.
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English Explanation of Mishnah Arakhin
If a woman has been put to death one may use her hair. It is forbidden to derive any benefit from a dead body. However, if a person has been executed, it is permitted to derive benefit from the hair because the rabbis don’t consider hair to be alive, such that it has the status of a dead body.
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Bartenura on Mishnah Arakhin
בהמה שנהרגה אסורה בהנאה – even its hair.
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English Explanation of Mishnah Arakhin
If an animal has been put to death it is forbidden to make any use of it. When it comes to an animal executed for committing a crime (murder or sex with a human being) the law works differently. Once an animal has been sentenced to die it is immediately forbidden to derive benefit from any part of its body, even from its hair. When it dies, it continues to be forbidden to derive benefit from the entire body, and this prohibition continues to apply to its hair. In other words, when it comes to human beings, death makes the body prohibited, and therefore the prohibition does not apply to hair, which is not prohibited. When it comes to animals, sentencing makes the body prohibited and therefore it applies to the entire body, including the hair.
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