Commento su Sanhedrin 9:11

אלו הן הנשרפין. הבא על אשה ובתה – on a woman whose daughter has already married, that is his mother-in-law.

Introduction The first half of mishnah one discusses those who are executed by burning, while the second half discusses those executed by being decapitated.

ובת כהן – and the daughter of a Kohen who ran about as a prostitute/was unchaste, [whose punishment] is by swallowing molten liquid.

The following are burnt: he who has sexual relations with a woman and her daughter, and a priest's adulterous daughter. There is included in [the prohibition of having relations with] a woman and her daughter his own daughter, his daughter’s daughter, his son's daughter, his wife's daughter and the daughter of her daughter or son, his mother-in-law, her mother, and his father-in-law's mother. There are two people who are punished by being burnt: one who has relations with a woman and her daughter (Lev. 20:14) and a priest’s daughter who commits adultery (Lev. 21:9). Our mishnah teaches that the prohibition of having relations with a woman and her daughter includes incestuous relationships, such as having relations with one’s wife and her daughter (whether or not she is his daughter). It also includes granddaughters. In all of these cases the man’s punishment will be execution by burning.

יש בכלל אשה ובתה – that is to say, with a mother and her daughter, it is explicitly written "שריפה"/burning (Leviticus 20:14): “If a man marries a woman and her mother….they shall be put to the fire/"באש תשרפו" …,” and from it we derive that all of these also and it is they are [punished] by burning.

The following are decapitated: a murderer, and the inhabitants of a city subverted into worshipping idols. A murderer who slew his fellow with a stone or iron, or kept him down under water or in fire, so that he could not get out of there, is executed. If he pushed him into water or fire, but he could get out of there , yet he died, he is not liable [for the death penalty]. The mishnah now begins to discuss those who are executed by decapitation. The first example is a murderer. (We will discuss the city seduced to idol worship more in chapter ten). A murderer is one who strikes his fellow person with intention of killing him. If he pushed his head into fire or water and did not allow him out, he is punished as a murderer. However, if he threw him into water or fire and the person died, he is not punished as a murderer, since the person could have escaped. According to another source, although he is not obligated in a court, he is obligated in a heavenly court.

בתו – from an outraged woman, for she is not the daughter of his wife, and he is liable on her because of his wife’s daughter, but she is not his wife’s daughter.

If he set a dog or a snake against him [and they killed him], he is free from death. If he caused a snake to bite him, Rabbi Judah ruled that he is liable [for the death penalty] and the Sages, that he is not. If he set a dog or snake upon another person and they bit him and he died, he is not liable, since he did not kill him with his hands. If he put the dog or snake on the other person, according to Rabbi Judah he is liable, since this counts as murder with one’s hands. According to the Sages this does not count as murder with one’s hands.

בת בתו ובת בנו – for they were his from his being a victim of unavoidably prevented accident.

If a man struck his fellow, whether with a stone or with his fist, and they [the experts] declared that he would die, but then its effect lessened [so that it was thought that he would live], only to increase subsequently, so that he died he is liable. Rabbi Nehemiah said that he is exempt, since there is a strong possibility [that he did not die as a result of his injuries]. If a person struck another person and then the doctors stated that he would die, and then later the patient started to recover, and then still later died, according to the Sages the striker is obligated for the death penalty. We can assume that he died of his wounds, even though he slightly recovered in the interim. According to Rabbi Nehemiah, since he even slightly recovered, we have a reasonable doubt with regards to the cause of his death, for perhaps he died of a different cause and not directly from the wounds. This reasonable doubt is enough to exempt him from the death penalty.

בת אשתו – whether she is his daughter or whether she is his step-daughter.

Questions for Further Thought:
• Section four: Why does the mishnah mention this strange case? What might it teach us in general about other cases?

וחמותו – even though that it [the Mishnah] explicitly taught at the first section – he who has relations with a woman who has married her daughter, and it is does not come from a derivation, for since it was taught regarding these a general principle – for the mother of his mother-in-law and the mother of his father-in-law, that come from a derivation, the Mishnah also taught, by the way, regarding his mother-in-law with them.

כבש עליו – he grabbed the head of his fellow and held him firmly in the water so that he wasn’t able to raise his head.

שיסה – incite/let loose

השיך – that he held the snake in his hand and led him and the tenth of the snake reached the body of his fellow.

רבי יהודה מחייב – that he holds that the poison of the snake in its teeth stands, and since that the tenth of the snake arrived in the skin of his fellow, it is as if he had killed him, and is liable.

וחכמים פוטרין – for they hold that the snake himself vomits his poison; therefore, it was not he that killed him but rather a mere indirect effect and he is exempt. And the Halakha is according to the Sages.

ואמדוהו למיתה – but we appraise him first for life. Even to the Rabbis, he is exempt.

שרגלים לדבר – that he didn’t die on account of that wound.

והיה בה כדי להמית על לבו ומת פטור – That both are necessary, that he intends to wound [to cause] death and also that they should stripe him a wound [to cause] death.

Introduction This mishnah deals with a murderer who intends to kill either in a certain manner or a certain person but does not fulfill his intention and yet nevertheless he kills someone. The question is, since he did not fulfill his intention is he liable to the death penalty. Before learning this mishnah we should note that the Exodus 21:12-13 states: “He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God…”. The Rabbis in our mishnah seem to be discussing what does “by design” mean. How much intention must there be in the act of murder for someone to be liable in the death penalty. While I am not an expert on modern law, I know that our modern law system also distinguishes between degrees of murder based on the level of intention in the act.

ר"ש אומר אפילו נתכוין להרוג את זה. – this does not refer to the end of the matter of the first Tanna, on that which the first Tanna [mentioned]– that he had the intention to wound the large individual but if it struck the small individual and he died, he is liable. For it is upon this that it refers, Rabbi Shimon exempts this person, is needed to be said, and why should he retract and explain that even if he intended to kill this one and killed that one, as the first Tanna explicitly stated this, what is the purpose of the word “even?” But, Rabbi Shimon is referring to the beginning – that if he intended to kill the animal and [instead] killed a person, he is exempt; but if he intended to kill a [particular] person but [instead] killed another person, he is liable. And on this, Rabbi Shimon comments – even if he intended to kill this one and killed [instead] that one, he is exempt. And the Halakha is according to Rabbi Shimon.

If he intended to kill an animal but killed a man, or [he intended to kill] a non-Jew and he killed an Israelite, or [if he intended to kill] a prematurely born child [who was bound to die in any case] and he killed a viable child, he is not liable. In this scenario a person intended to kill someone for whom he is not liable for the death penalty, either an animal, a non-Jew or a prematurely born child. However, instead of killing one of these, he kills someone for whom he is liable for the death penalty. In such a case, since he did not fulfill his intention, he is not liable for the death penalty, even though he did kill someone for whom he is generally liable. We should note that although according to our mishnah, one does not receive the death penalty for killing a non-Jew, Jewish law certainly today forbids doing so. With regards to the prematurely born child, it is also important to note that our mishnah is referring to a child who will certainly die. In our days a prematurely born child often times lives, and therefore is no different from any other child. We indeed can be thankful for the many advances in modern medicine, advances which have surely had and will continue to have an impact on many areas of Jewish law.

If he intended to strike him on his loins, and the blow was insufficient to kill [when struck] on his loins, but struck the heart instead, where it was sufficient to kill, and he died he is not liable. If he intended to strike him on the heart, where it was sufficient to kill but struck him on the loins, where it was not sufficient to kill, and yet he died, he is not liable. If he intended to strike an adult, and the blow was insufficient to kill [an adult], but the blow landed on a child, whom it was enough to kill, and he died, he is not liable. If he intended to strike a child with a blow sufficient to kill a child, but struck an adult, for whom it was insufficient to kill, and yet he died, he is not liable. But if he intended to strike his loins with sufficient force to kill, but struck the heart instead, he is liable. If he intended to strike an adult with a blow sufficient to kill an adult, but struck a child instead, and he died, he is liable. If one intends to strike another person on his waist area (his loins) with a blow that would not kill in that area but instead struck him on his chest (his heart) where the blow was enough to kill, he is not liable for the death penalty, since, if he had landed the blow where he intended he would not have killed him. If he intended to strike him on his chest with a blow that would be sufficient to kill but he struck him on his waist where the blow would generally not be sufficient to kill, but nevertheless it did kill, he is not liable. Since normally this strike would not kill where it did end up landing, he is not held liable. We can summarize that in order to be liable one must strike a place on the victim’s body with a blow generally strong enough to kill when struck on that place, and one must have intended to strike that place from the outset. If one intended to strike an adult with a strike that was insufficient to kill an adult but struck a child he is not liable for the death penalty, since if the strike had landed where he had intended it would not have killed. If he intended to strike a minor with a strike insufficient to kill a minor but he struck an adult instead and the adult died he is not liable, since, normally this strike would not kill an adult. The final two clauses of this section teach cases where he is liable. If he intended to strike him on his waist and it was sufficient to kill and he struck him on his chest and killed him he is liable. Although he did not intend to strike him there, since his intention had been to strike with a blow strong enough to kill no matter where it hit, he is liable. Similarly, if he intended to strike an adult with a blow sufficient to kill, and he struck and killed a minor, he is obligated, since his intention had been to strike with a blow strong enough to kill no matter whom it hit.

Rabbi Shimon said: “Even if he intended to kill one but killed another, he is not liable. Rabbi Shimon goes even further than the other Sages in advancing the theory that in order for one to be liable for the death penalty he must completely fulfill his intentions. According to Rabbi Shimon if one intended to kill one person and killed instead another, he is not liable for the death penalty. The Sages in section one had stated that if he intended to kill an animal and instead killed a person he is not liable. The reason seems to be that he intended on killing something for which he would not receive the death penalty. One can deduce, therefore, that if he had intended on killing one adult Jew but instead killed another, he would be liable for the death penalty. Rabbi Shimon states that even if one intended on killing someone for whom one would receive the death penalty, if he did not fulfill his exact intention, he is not liable for the death penalty.

Questions for Further Thought:
• How are the scenarios in 2d and 2e different from those in the previous clauses?

רוצח שנתערב באחרים – such as two people who were standing and an arrow came out from between them and killed, both of them are exempt, and even if one of the two of them was presumed for his righteousness and it was known that he did not shoot the arrow, even so, they don’t make him liabler for other by this presumption.

Introduction The opening clause of this mishnah deals with a murderer who is mixed up with others who are not murderers, and the court does not know which one was the murderer. The second clause deals with people condemned to die by different forms of execution who become mixed up together such that the court does not know who gets which punishment..

רבי יהודה אומר כונסין אותן לכיפה – Our Mishnah is deficient and this is how it should be read as follows: An ox whose proceedings are finished (i.e., the sentence was pronounced) that it was mixed up with other oxen , they stone them, for perforce, all of them forbidden to derive benefit from them and even if they were one-thousand, because of this ox that was mixed up with others, therefore we stone all of them in order that the Mitzvah of stoning can be fulfilled with the one who was liable for it. [Rabbi Yehuda states]: They put them all in prison., and there is no need to stone them, but rather, put them in a room and they will die of hunger. But the Halakha is not according to Rabbi Yehuda.

If a murderer became mixed up with others, they are all exempted [from the death penalty]. R. Judah said: they are placed in a cell. If a condemned murderer becomes mixed up in a crowd of people so that no one can identify which one is the murderer and which one is not, none of them may be executed. Although this sounds like a strange and highly unlikely prospect, it nevertheless teaches the principle that unless the court is 100 per cent sure of the identity of the murderer, he may not be killed. According to Rabbi Judah, the court cannot leave this problem without a solution. They would therefore put all of the people into prison until the matter was clarified. [The Talmud has many difficulties in understanding this ruling of Rabbi Judah, since it seems to unfairly punish innocent people. Therefore they understand this as only applying to certain, limited cases.]

ר' שמעון אומר בסייף – for choking is more stringent.

If a number of persons condemned to different types of sentences became mixed with one another, they are executed by the most lenient. If criminals condemned to stoning [became mixed up] with others condemned to burning, Rabbi Shimon said: they are stoned, because burning is severer. But the sages say they are burned, because stoning is severer. (1) Rabbi Shimon said to them: “If burning was not severer, it would not be decreed for a priest's adulterous daughter.” (2) They replied: “If stoning was not severer, it would not be the penalty of a blasphemer and an idolater.” If men condemned to decapitation became mixed up with others condemned to strangling, Rabbi Shimon said: “They are [all] decapitated.” The sages say: “They are [all] strangled.” The remainder of the mishnah deals with the intermixing of persons condemned to different types of death penalties. The principle is stated very clearly in the beginning of the section that in such a case they all receive the most lenient of the death penalties to which any one person in the group had been condemned. The remainder of the disputes between Rabbi Shimon and the Sages are over which types of execution are more serious than the others. This dispute was already discussed in the beginning of chapter seven. Rabbi Shimon believes that burning is more serious than stoning, whereas the Sages believe that stoning is more serious. Each side tries to prove his case by bringing an example of a serious crime which is punished by one of these types of execution. According to Rabbi Shimon, the fact that an adulterous daughter of a priest (kohen) is punished by burning proves that burning is more serious. According to the Sages, the fact that the blasphemer and the idol worshipper are punished by stoning proves that stoning is more serious. Finally, in the end of the mishnah we learn that according to Rabbi Shimon strangling is more serious than decapitation, whereas according to the Sages, decapitation is more serious. Despite these disputes, everyone agrees that when in doubt a person is punished by the least serious form of the death penalty.

וחכמים אומרים בחנק – for the sword is more stringent.

Questions for Further Thought:
• Why might Rabbi Shimon think that an adulterous daughter of a priest is a prime example of a very serious crime, one which is punished by the most serious type of death penalty? Why might the Sages disagree?

מי שנתחייב שתי מיתות – such as the case where a person committed a minor transgression and when the proceedings were finished (i.e., the sentence was pronounced), he went and committed a major transgression; one might think that since the proceedings were finished for the minor transgression, that he is a man to be put to death, this comes to teach us that this is not the case.

Introduction Mishnah four discusses a person who through one act incurs two different types of death penalty.

עבר עבירה ישי בה שתי מיתות – such as the case of his mother-in-law, and she is a married woman.

While in the previous mishnah we learned that if we are unsure of which death penalty a person is to receive he gets the more lenient one, in our mishnah we learn that if a person deserves two death penalties, he gets the more severe one.

נידון בחמורה – with burning (i.e., swallowing a molten-liquid), because she is his mother-in-law, and not like [for a transgression] with a married woman which is [punishable] by choking.

He who incurs two death penalties imposed by the court is executed by the severer. Section one deals with a person who has committed two different crimes which carry the death penalty. Even if he was already sentenced to the lighter death penalty, and then committed another crime which carries a more severe form of the death penalty, he still gets the more severe form. In other words, we do not say that since he already was sentenced to one death penalty it is as if he has already been executed and therefore he cannot get another.

נדון בזיקה הראשונה – with that prohibited act that he was obligated to regard first to be careful to separate himself from he is judged, but not on the prohibition that he comes upon last, even though it is the more stringent, for Rabbi Yosi holds that one prohibition does not take effect on another, and even the more stringent upon the lenient, and if he married the daughter of a widow, who was first his mother-in-law when she was a free-woman and after that she married, he is judged with burning (i.e., swallowing a molten-liquid). And if she was a married woman and afterwards became his mother-in-law, she is judged with choking, like the death of a married woman that she was at first. But the Halakha is not according to Rabbi Yosi.

If he committed one sin for which a twofold death penalty is incurred, he is executed by the severer. R. Jose says: “He is judged according to the first penalty which was placed upon him.” Section two deals with a person who through one crime receives two different forms of the death penalty. For instance if a man has relations with his married mother-in-law he is obligated for burning (since he had relations with a mother and her daughter) and for strangulation, since he committed adultery. According to the Sages he again receives the more serious form of the death penalty. According to Rabbi Yose he receives the death penalty for the crime which potentially existed first. We will explain. If he marries a widow’s daughter, this woman is now forbidden to him since she is his mother-in-law but she is not forbidden as a married woman, since she is a widow. If he were to now have relations with her he would be punished through burning. If she were then to get married, the punishment would also be strangulation. Since the prohibition of a mother-in-law existed first, he is punished by burning. If, however, she was married and then he married her daughter, he would be punished by strangulation, since she was first prohibited to him due to her being a married woman.

מי שלקה ושנה – he was flogged twice on a transgression that he would be liable for extirpation, for all those who are liable for extirpation are flogged, and when he would come back and perform that same transgression a third time.

Introduction Mishnah five deals with special punishments for a repeat criminal and for one who commits murder without witnesses. These punishments are what I would call extra-halakhic punishments. They don’t seem to have been prescribed by the Torah, but rather by the Rabbis desire to shape their legal system.

מכניסין אותו לכיפה – a place that is measured like the stature (i.e. height) of a person and not more, and they would feed him first the bread of adversity (i.e., scanty rations) and water of distress/affliction until his intestines shrink (Sanhedrin 81b), and afterwards they would feed him barley that would blow up his intestines until his belly explodes.

He who was flogged and then flogged again [for two transgressions, and then sinned again,] is placed by the court in a cell and fed with barley bread, until his stomach bursts. According to the Talmud this clause is dealing with a person who committed a sin for which one is obligated for “kareth” or excommunication, a punishment of premature death meted out by God and not by a human court. According to Jewish law, if one is beaten for a crime that carries a punishment of “kareth”, the “kareth” is mitigated. If one commits this crime, is beaten, and repeats the crime, and is beaten again and then commits the same crime again, he is put into a jail and fed food that will cause him to die. Since this person has shown over and over that beating is an ineffective form of punishment, the court has no way to stop his behavior other than killing him.

שלא בעדים – for it is not through testimony that he will be liable for death. And nevertheless, it is known to the Jewish court that the matter is true and that he certainly killed, but the witnesses were contradicted in their examinations or that there was a doubtful warning.

One who commits murder without witnesses is placed in a cell and [forcibly] fed with bread of adversity and water of affliction. Earlier in our tractate we learned just how difficult it is for testimony to be accepted by the court. There will certainly be cases in which the testimony cannot be officially accepted but nevertheless it is clear that this person is a murderer. In such a case the court has the authority to cause him to die by imprisoning him and feeding him food that will cause his stomach to rupture. The “bread of adversity and water of affliction” (based on the language of Isaiah 30:20) mentioned here is understood as synonymous with the barley mentioned in the first section.

ומאכילין אותו לחם צר ומים לחץ – first and afterwards we feed him barley until his stomach explodes, and that is the first part [of the Mishnah] and what this part was lacking, the other part revealed.

Questions for Further Thought:
• Why didn’t the Rabbis merely state that these two categories of people are to be executed in one of the four ways? Why this strange system of feeding them food that will cause them to die?

הגונב את הקסוה – one of the service vessels (see Talmud Sanhedrin 81b), from the language (Numbers 4:7): “and the libation jugs.”

Introduction Mishnah six continues to list what I have termed “extra-halakhic” punishments.

המקלל בקוסם – who blasphemes the name [of God] in the name of idolatry.

If one steals the sacred vessel called a “kasvah” (Numbers 4:7), or cursed by the name of an idol, or has sexual relations with an Aramean (non-Jewish woman, he is punished by zealots. This section lists three crimes in which the mishnah allows religious zealots to kill the perpertrator at the moment of the crime even though these crimes do not normally carry the death penalty. The first crime is stealing a sacred vessel from the Temple. The second crime is one who used the name of an idol to curse another person. The third crime is one who has relations with an Aramean woman (or any idol worshipping woman). The quintessential example of the zealot in the Torah is the example Pinchas, who upon seeing an Israelite having sexual relations in public with an Midianite woman, kills the two of them on the spot. God rewards Pinchas for his zealotry by giving him a “covenant of peace” (Numbers 25:6-13). Of course, Jewish tradition was very troubled by people taking the law into their own hands and summarily executing others. When reading this mishnah we must take into consideration that it is embedded in a tractate entirely devoted to the establishment of courts and judicial procedure. This mishnah does teach, though, that occasionally vigilante justice is legitimate.

והבועל ארמית – a heathen woman.

If a priest performed the temple service while impure, his fellow priests do not bring him to the court, but rather the young priests take him out into the courtyard and split his skull with clubs. A priest who served in the Temple while impure has committed a grave crime in the eyes of Jewish law and is, according to halacha to be flogged. However, our mishnah describes what the kohanim would in practice do to one of their fellow kohanim who had served in the Temple while impure. The younger members of the priesthood would split his skull with clubs. Although this mishnah sounds barbaric to our modern ears, it is important to remember the degree of sanctity that existed in the Temple. The Temple was God’s dwelling place on earth and one who caused it to become impure endangered all of Israel. The kohanim have been charged with protecting that sanctity, and therefore took any violation of it with the utmost seriousness.

קנאים פוגעים בו – those who are zealous with the zealousness of God would kill him. And it would be a heathen woman the daughter of those who worship idols, and at the time of the act, and before ten [men] of Israel (i.e., the community) , and if one of these conditions is missing, it is prohibited to kill him. But, his punishment is explained by the prophet (Malachi 2:12): “May the LORD leave to him who does this no descendants [dwelling in the tents of Jacob and presenting offerings to the LORD of Hosts].” And we flog him four times from the words of the Scribes: because of her being a menstruant woman, because she is a maid-servant, because she is a heathen and because she is a harlot.

A layman who performed the service in the Temple: Rabbi Akiva says: “He is strangled.” But the Sages say: “[His death is] at the hands of heaven.” According to Numbers 18:7 any stranger, i.e. one who is not a priest, who performs the priest’s work in the Temple shall die. Rabbi Akiva understands this as a court enforced death penalty, whereas the Sages understand this as a death penalty meted out by God, and not by the court.

פרחי כהונה – boys whose hair of their beards begin to flower on them.

Questions for Further Thought:
• What is the difference between section three and the previous two sections of this mishnah and the previous mishnah?

בגזירין – logs of wood.

רבי עקיבא אמור בחנק – it is stated here (Numbers 1:51): “Any foreigner who encroaches (the Tabernacle) shall be put to death,” and it is stated there (Deuteronomy 13:6): “As for that prophet or dream-diviner, he shall be put to death…” Just as there, [his death] is by choking, so also here by choking.

וחכמים אומרים בידי שמים – It is stated here, “he shall be put to death” (Numbers 1:51) and it is stated further on (Numbers 17:28): “Everyone who so as much as ventures near the LORD’s Tabernacle must die…” Just as further on, it as at the hands of Heaven, so here too at the hands of Heaven. And the Halakha is according to the Sages. But death at the hand of Heaven is less than from extirpation, for extirpation has upon it a punishment after death if he did not repent appropriately. But[regarding] death at the hands of Heaven, there is nothing after it at all. And Rashi wrote in the chapter “With what do we kindle [Shabbat lights]” (chapter two of Tractate Shabbat, 25a): that death at the hands of Heaven, his days are shortened and he does not go childless. Extirpation has two [things associated with it]: His days are cut off and he goes (i.e., dies) childless. And those who are liable to death at the hand of Heaven on the matters of the Sanctuary and the holy things are eleven, and they are: He who eats eatables forbidden pending the separation of sacred gifts, a ritually impure Kohen who eats pure priest’s due, and the foreigner (i.e., the non-Kohen) who eats priest’s due, and the foreigner, the impure and the ritual impurity of one who immersed during the daytime but does not attain ritual purity until the evening – who served [in the Sanctuary] , and those [Kohanim] lacking atonement, those [Kohanim] lacking priestly garments, and who did not sanctify their hands and feet and those who are intoxicated with wine and had overgrown hair. Some of them it says [the punishment of] death regarding them explicitly and some of them our Rabbis learned from the received tradition by verbal analogy and by juxtaposition.