Comentário sobre Sanhedrin 1:7

דיני ממונות – that is admissions (according to Tractate Shevuot 6:1 – worth at least one Perutah) and loans.

Introduction The first four mishnayoth of Sanhedrin discuss how many judges are needed to adjudicate certain cases of civil and criminal law. The typical number for civil cases was three and the typical number for criminal cases was twenty-three. The problem will arise in situations where it is not clear whether a certain case is civil or criminal.

בשלשה – commoners/lay persons, for the Rabbis did not require three specialists, in order not to lock the door before loans, lest the borrower confess and specialists are not found to force him to court, but rather, or one [judge] would be a specialist or [all] three are commoners; but cases of theft and mayhem [require] three specialists, for [the word] אלהים/”God” (which means judges) is written in the section of the guardians in [the Torah portion] of “And these are the statutes” (Exodus, chapter 21 and beyond; specifically, the verses are: Exodus 22:6-8) , and from it we derive three specialists.

Cases concerning property [are decided] by three. Property cases include disputes arising out of loans, sales, inheritance, gifts and other similar monetary matters.

נזק – [damage caused] by man or by a warned bull , who damaged him for which they pay complete damages.

Cases concerning robbery or personal injury, by three. Personal injury is a case where one person directly injures another. Robbery, as we learned in Bava Kamma chapter nine, does not carry with it a penalty of twofold restitution as does thievery.

חצי נזק – an innocuous bull, who caused damage (and even though this is mayhem) , since it was necessary to teach in the Mishnah “double fines, and four and five-times payment, which he doesn’t pay like what he damages, when he pays more. The Tanna [our Mishnah] also taught half-damage in which he does not pay what he damaged, for he pays less. And since the Mishnah taught half-damage, it also taught [full] damages.

Claims for full damages or half-damages, twofold restitution, or fourfold or fivefold restitution, by three. Full damages are assessed when a “warned” animal, one that has previously injured three times, causes further damage. Half-damages are assessed when the damaging animal had not injured three times. Twofold restitution is the penalty for a thief, and fourfold or fivefold restitution is the penalty for a thief who stole an animal and either sold it or slaughtered it.

ומוציא שם רע – “I did not find your daughter a virgin” (Deuteronomy 22:17); “and they shall fine him one hundred shekels of silver [and give it to the girl’s father for the man has defamed a virgin in Israel…]” (Deuteronomy 22:19).

Claims against a rapist, a seducer and one who defames [a virgin are decided] by three, according to Rabbi Meir. The Sages say: “One who defames [a virgin is decided] by twenty-three, for there may arise from it a capital case. According to the Torah the rapist (Deut. 22:29) and the seducer (Ex. 22:16-17) pay fines of 50 shekel for having illegally taken the woman’s virginity. In addition, according to the Rabbis the rapist also pays for injuring the woman as would any person who causes another person injury (see Bava Kamma, chapter eight). The “one who defames a virgin” is referred to in Deut. 22:13-22. This is a case where a husband falsely claims that the wife was not a virgin. If the husband was found to be a liar he is beaten and must pay a fine of 100 shekels. If his accusation turned out to be true the woman is put to death. The Rabbinic understanding of this law greatly differs from its simple understanding in the Torah, but now is not the place for a detailed explanation.

דיני נפשות – and if the matter was found to be true that she was unfaithful [to her husband] and they stoned her. And capital cases [are judged] by twenty-three, as seen further, and Halakha is according to the Sages.

מכות – forty stripes

Introduction Mishnah two continues to list the numbers of judges needed for different types of cases.

בשלשה – as it is written (Deuteronomy 25:1): “…and they go to law, and a decision is rendered.” The word ושפטום/and they go to law – [denotes] two, and there can never be an even-balanced court, so we add upon them another [judge], for we have three [judges].

[Cases concerning offenses punishable by] beating [are decided] by three. In the name of Rabbi Yishmael they said twenty-three. According to Deut. 25:1-3, in certain cases a criminal is punished by beating through lashes. According to Rabbi Yishmael, although this is not truly a capital case, it nevertheless must be adjudicated by twenty-three probably because they occasionally will lead to death.

רבי ישמעאל אומר: בעשרים ושלשה – it comes [by a comparison of the word] רשע רשע –[found in two different places by analogy]. It is written here (Deuteronomy 25:1) “declared the one in the right and the other in the wrong”, and it is written there (Numbers 35:31): “[You may not accept a ransom for the life of a murderer] who is guilty of capital crime; [he must be put to death].”Just as there (i.e., in Numbers 35:31), with twenty-three [judges], so here (Deuteronomy 25:1) with twenty-three [judges].

The intercalation of the month and intercalation of the year [are decided] by three, according to Rabbi Meir. Rabban Shimon ben Gamaliel says: “The matter is begun by three, discussed by five, and decided upon by seven. But if they decided upon it with three, the intercalation is valid.” A month according to the Jewish calendar is 29 or 30 days. The court would decide each month whether the month should have 29 or 30 days. This was the intercalation of the month. The intercalation of the year was the decision whether or not to add another month of Adar (the twelfth month of the Jewish year if we begin counting at Nisan) in order to turn the twelve month year into a thirteen month year. According to Rabban Shimon ben Gamaliel, the process of the intercalation of the year is such a serious matter that it must be discussed by more than three judges. The process is begun with three. If they agree to intercalate the year two more judges are added. If they still agree then yet another two judges are added. If the seven agree then the year becomes intercalated. However, if they decided with only three judges the intercalation is nevertheless valid.

עיבור החודש – the Sanctification of the [New] Month, and since it was necessary [for the Mishnah] to teach the intercalation of the year (i.e., proclaiming a leap-year/inserting a second Adar), so too it taught the intercalation of a month (i.e., proclaiming a month just past one of thirty days).

Questions for Further Thought:
• Why do you think Rabban Shimon ben Gamaliel considered the intercalation of the year to be such an important issue?

בשלשה מתחילין – to see if one is able to appoint a Jewish court on this. And if one of the three [judges] says that there is a need for the Jewish court to sit and investigate if it is necessary to intercalate the year because of the solstice, and the spring and the fruition, but two say that it is not necessary, for there is no doubt here and for sure it is not necessary to have a leap year, the individual is nullified in his minority [status]. Two [judges] who say to appoint a Jewish court and one [judge] says not to appoint [a Jewish court], we follow after the two [judges], and we add two other [judges] who will engage in give-and-take in the matter, and hence we have here five. If two [judges] say that we must intercalate [the year] and three [judges] say that it is not necessary, the two are nullified in their minority. [But if] two [judges] say that it is not necessary and three [judges] say that it is necessary, we follow after the majority, and add another two [judges] so that that there will be seven and we intercalate it [i.e., the year]. And the Gemara explains that these three, five and seven correspond to the Priestly Blessing, for there are three words in the first verse, and in the second, five [words] and in the third [verse] seven [words], and the Halakah is according to Rabban Shimon ben Gamaliel.

סמיכת זקנים – on the head of a bullock over a matter that escaped the notice of the community. And there is in the implication of these things also the appointment of a judge, for the greatest one who is ordained, needs to combine with him two [others] when he wants to ordain a Sage in order in order that he will be called “Rabbi” and will adjudicate laws of fines. And we use the language of סמיכה / laying of hands/ordination because it is written (Numbers 27:23): “He laid his hands upon him [and commissioned him – as the LORD had spoken through Moses].” And not that one requires the ordaining with his hands upon him, but by name, as they call him “Rabbi.” But there is no ordination outside of the Land of Israel, but it is necessary that the one who ordains and the ordainee are all together in the Land of Israel, for then he will have permission to adjudicate the laws of fines, and even outside of the Land, for the [authority of the] Sanhedrin applies both in the Land [of Israel] and outside of the Land [of Israel], after they have been ordained in the Land [of Israel]. And Maimonides wrote that it appeared to him that since we no longer have men ordained by the mouth of other men [going back] until the time of Moses our Teacher, if all the Sages in the Land of Israel would each ordain one individual or many, it would be that they would be ordained and able to adjudicate the laws of fines and they would be able to ordain others. And this matter requires a verdict by a majority of one.

The laying on of the elders’ hands and the breaking of the heifer’s neck [are decided upon] by three, according to Rabbi Shimon. But Rabbi Judah says: “By five.”
The rites of halitzah and “refusal” [are performed] before three.
The fruit of fourth year plantings and Second Tithes whose value is not known [are redeemed] before three.
Things dedicated to the Temple [are redeemed] before three.
Vows of evaluation to be redeemed with movable property, [are evaluated] before three. Rabbi Judah says: “One must be a priest.” [Vows of evaluation], [to be redeemed] with land [are evaluated] before nine and a priest.
And similarly [for the evaluation] of a man.
Mishnah three deals with the number of judges needed in cases that are of a religious/ritual nature.
Section one: According to Leviticus 4:13-21, when the whole community of Israel commits an accidental transgression, they must bring a bull as a sin offering. According to verse 15, before sacrificing the bull the elders would lay their hands on the bull’s head. Our mishnah teaches that this laying on of the hands was done by three judges.
The “breaking of the heifer’s neck” refers to Deut. 21:1-9. These verses describe a ritual of expiation that was to be done in the case where a person was found murdered but the murderer was unknown. Deuteronomy refers to “elders” who were to carry out the process and our mishnah teaches that there were three.
Section two: Halitzah is the refusal of the Levirate marriage (Deut. 25:5-10). If a woman’s husband dies and they have no offspring, his brother is obligated to marry her and bring forth offspring on his dead brother’s behalf. This is called “Levirate marriage”. If the brother should refuse to do so, they must go through a process called Halitzah before the woman is free to marry someone else. This is done in front of three judges.
“Refusal” refers to a daughter who was married off by her brother or mother. According to the Rabbis a father has a right to marry off his daughter while she is a minor and this marriage is totally binding and the girl cannot be released from the marriage except upon the death of the husband or divorce. However, a mother or brother’s ability to marry off the girl is less binding. When she becomes of a majority age she may refuse her husband and thereby annul the marriage. The “refusal” must be done in front of three judges.
Section three: Plants that are in their fourth year and the Second Tithe must be brought to Jerusalem and eaten there. If one lived far from Jerusalem and did not wish to carry all of this produce all the way to Jerusalem he could “redeem” the produce and bring the money to Jerusalem and use it to buy food there. The redeeming had to be done in front of three judges.
Section four: If a person dedicated an animal to the Temple that was not fit to be sacrificed, for instance a donkey, he could redeem the animal and donate the money to the Temple (Lev. 27:11). The redemption had to be done in front of three.
Section five: According to Lev. 27 a person could take a vow to donate his own value to the Temple. In such a case the Torah gives set amounts of money that must be donated to the Temple, depending on the age and gender of the one who took the vow. In general, since the Torah prescribes set amounts, no judges will be needed to evaluate how much the person owes. If however, the person has no money, he will need to donate some of his property. If the property to be donated is movable property a court of three is sufficient for its evaluation. According to Rabbi Judah, one of them must be a priest. If the property to be donated is land, a court of ten, including one priest is needed to determine the value of the land. According to Lev. 27:8, if the one who took the vow could not afford to donate his own value a priest was allowed to assess how much he could afford. According to the mishnah this assessment was done in front of a court of ten, which would include one priest.

ועריפת העגלה בשלשה – since it is written (Leviticus 4:15): “ The elders of the community [lay their hands upon the head of the bull before the LORD…”, the lowest [value] of [the word] זקנים/elders is two, and there cannot be an even-balanced court, they add upon them another “one,” so that there are three.

רבי יהודה אומר: בחמשה – [The word] וסמכו/and they lay their hands [denotes] “two”, [and the word] זקני/elders [denotes] two, and there cannot be an even-balanced court, they add upon them another “one,” so that there are five, and the Halakha is according to Rabbi Yehuda.

מצות חליצה בשלשה – As it is written (Deuteronomy 25:9): “the brother’s widow shall go up to him in the presence of the elders…” The word זקנים /elders [denotes] two , and there cannot be an even-handed court, they add upon them another “one,” which makes three. And the other two which they add on are not [added] other than to publicize the matter.

מיאונין – A minor orphan girl whose mother or brothers married her off, with her knowledge, and may go free with her protest against a marriage to her husband [contracted during her minority], which must take place [with a Jewish court] of three [judges], and in the Tractate Yevamot, it is proved that a woman’s protest it is enough [that the protest is lodged] in front of two [judges].

נטע רבעי – if he comes to redeem [them] by setting aside its monetary value, and similarly for the Second Tithe, where their value is not known, such as fruits that rotted and they do not have a known market rate.

וההקדשות – One who comes to redeem them requires three [judges] to estimate [their value].

הערכין המיטלטלין – For a person who said: “[I vow] the value of so-and-so upon myself”, and he lacks money to give according to the established price and he comes to give [the equivalent] in movable objects, requires three [judges] to estimate [the value] of those movables.

אחד מהן כהן – that in valuations [of a person or animal dedicated to the Temple], a Kohen is written (Leviticus 27:12): “whatever assessment is set by the priest shall stand.”

והקרקעות – and if he lacks movable [objects] and comes to give land, it requires ten individuals who will assess [the value of] the land, and one of them must be a Kohen, that it will be according the value that he must give.

ואדם כיוצא בהן – and if he said, the value of so-and-so is upon me, that we appraise the how much worth he would have to be sold in the marketplace, and he gives its monetary value, and this also requires that there would be ten [individuals], and one of them a Kohen in this appraisal.

והרגת את האשה ואת הבהמה – that is an animal that copulates with a woman, which is compared by analogy to a woman. Just as a woman [is tried by a court] of twenty three, so is the animal [tried by a court of twenty-three.

Introduction Mishnah four deals with the number of judges in cases involving capital crimes.

ואומר: "ואת הבהמה תהרוגו" – It is written concerning an animal that was copulated by a man. We have [thereby] learned/derived the animal that copulated with a woman and the animal that was copulated by a man.

Cases concerning offenses punishable by death [are decided] by twenty three. Capital crimes are adjudicated by a court of twenty three. This is certainly due to the gravity of the punishment, which is of course irrevocable.

כמיתת הבעלים – that is to say, just as the owner is judged by [a court of] twenty-three [judges], if he was liable for the death penalty.

A beast that has sexual relations with a woman or with a man is [judged] by twenty three, as it says, “You shall execute the woman and the beast” (Lev. 20:16) and it says, “You shall execute the beast”. According to Lev. 2O:15-16 when a man or woman has sexual relations with an animal, not only are the human beings to be executed but the animal as well. Our mishnah teaches that just as the human beings are judged by twenty three so too are the animals.

כל הקודם להורגן זכה – when they killed a human being, and there is no need to bring them to be tried in a Jewish court.

The ox that is stoned [is judged] by twenty three., as it says, “The ox shall be stoned and also its owner shall be put to death” (Exodus 21:29), as is the death of the owner, so too is the death of the ox. According to Exodus 21:28-29 if an ox kills a man or woman the ox must be stoned. If the ox was a “warned” ox, that is one that had previously gored, the owner of the ox is to be stoned as well. Our mishnah teaches, just as the human being would be judged by twenty three, so too the animal.

רבי עקיבא אומר: וכו' – It explains in the Gemara that there is a difference between the first teacher [of the Mishnah] and Rabbi Akiva. [Concerning] a snake – where the first Tanna [of the Mishnah] claims that its death is via a Jewish court of twenty-three [judges], but according to Rabbi Akiva, [the wolf], the lion, and the bear and the leopard and the hyena , their deaths [are administered] through [a Jewish court] of twenty-three [judges], but a snake, all who can kill it earliest, is [found] worthy, for it removes the one who causes damage from the world. And the Halakha is according to Rabbi Akiva.

The wolf, the lion, the bear, the leopard, the panther, or serpent [that have killed a human being] their death is [adjudicated] by twenty three. Rabbi Eliezer says: “Anyone who kills them before they come to court merits.” But Rabbi Akiva says: “Their death must be [adjudicated] by twenty three. Not only are oxen who kill humans to be executed but any animal that kills a human. According to the first opinion in the mishnah, these animals are also to be judged by a court of twenty three. Rabbi Eliezer disagrees and says that the first person who sees them should kill them. After all, these animals which are wild and cannot be guarded as an ox can be guarded, present a hazard to the safety of the public. Rabbi Akiva disagrees with Rabbi Eliezer and states that they must be judged in front of a court of twenty three and only then can they be executed.

את השבט – the majority of a tribe that intentionally worshiped idolatry, they are not judged other than with a Jewish court of seventy one, as it is written (Deuteronomy 17:5): “You shall take the man or the woman [who did that wicked thing] out to the public place….”, You can take a man or a woman out to the public place, but you cannot take out a tribe to the public place (i.e., literally, “your gates”) other than with the large Jewish court [of seventy-one members].

Introduction Mishnah five deals with cases which are only adjudicated in front of a full court of seventy one, which was the number of the full Sanhedrin.

ולא את נביא השקר – The Rabbis learn/derive [by analogy from the double usage of the word] דבר דבר [from the case of] the rebellious elder [disregarding the decision of the Supreme Court]. It is written here (Deuteronomy 18:20): “[But any prophet] who presumes to speak [in My name an oracle that I did not command him to utter…],” and it is written regarding the rebellious elder (Deuteronomy 17:8): “If a case is too baffling for you to decide…” Just as the rebellious elder [is judged] in the Great Jewish court, as it is written, (Deuteronomy 17:8): “you shall promptly repair [to the place the LORD your God will have chosen], so also the false prophet [is to be tried] in the Great Jewish court.

A tribe, a false prophet, or the high priest may not be tried save by the court of seventy-one; The trial of a “tribe” refers to a case in which an entire tribe is suspected of having committed idolatry. According to the mishnah in such a case the tribe is tried in front of seventy-one judges and not the twenty three who would adjudicate a normal case of idol worship (which is punishable by death). A false prophet is referred to in Deut. 18:20 which states that such a prophet should be executed. The High Priest also may only be judged by a court of seventy one. The common denominator between the High Priest and the prophet is the high regard that society would have for both of them. In order to reflect this high regard and the public nature of such trials they would have been held in front of the Great Sanhedrin of 71. Note that according to the Christian Bible, Mark 14:53ff and John 18:13 Jesus was tried in front of the Sanhedrin. In other passages some of the disciples and Paul are also questioned by the Sanhedrin.

ולא את כהן גדול – For the Biblical verse states (Exodus 18:22): “…Have them bring every major dispute to you, [but let them decide every minor dispute themselves].” The matters for a great person, they should bring to you, and Moses was in place of [the court] of seventy-one.

They may not send forth the people to wage a battle of free choice save by the decision of the court of one and seventy; In Jewish law there are two types of war: a mandatory war and a war of free choice. A mandatory war would be either a defensive war or a war whose purpose was to capture the Land of Israel as was in the days of Joshua. A war of free choice would be one which expands the borders beyond the Biblical borders. [Note: the Biblical borders are very difficult to delineate, and there are indeed several versions of them]. Since there will inevitably be heavy casualties in war, the decision to go to a war of free choice requires a full Sanhedrin of 71. A mandatory war would not require the decision of any court.

ואין מוציאין למלחמת הרשות – Every war except for the wars [against] the seven {Canaanite] natiosn and the war [against] Amalek, is called the optional (secular/political) war.

They may not add to the City [of Jerusalem], or the Courts of the Temple save by the decision of the court of seventy-one; They would not add to the borders of Jerusalem or to the size of the Courts in the Temple except by a court of 71. Adding to either the border of Jerusalem or the Temple causes a greater level of sanctity in these places and therefore requires a full court. Note that as the population grew it was occasionally necessary to expand both the Temple and Jerusalem itself, a fact that can be seen in any archaeological dig in Jerusalem.

אלא בבית דין של שבעים ואחד – as it is written (I Chronicles 27:34): “After Ahitophel were Jehoiada son of Benaiah [and Abiathar. The commander of the king’s army was Joab.” (In verse 33 is written:) “Ahitophel was a counselor to the king.” Jehoiada son of Benaiah is the Sanhedrin, for he was the greatest of them all and all of them were dragged after him. (The Bartenura or the Gemara – Sanhedrin 16b and see the Tosafot misquoted the verse).

They may not set up sanhedrins for the several tribes save by the decision of the court of one and seventy. Setting up smaller, local sanhedrins, which would have included 23 judges can only be done by the Great Sanhedrin of 71.

על העיר – Jerusalem, whose holiness is greater than the rest of the Land of Israel (see Mishnah Kelim, Chapter 1, Mishnah 6 and following).

And they may not proclaim [any city to be] an Apostate City (ir ha- (Deut. 13:13–19] save by the decision of one and seventy. According to Deut. 13:12ff. if a town has been subverted into idol worship all of the residents of the town are to be executed and the entire town and all of its contents are to be burned. This harsh law (that was never in actuality carried out) could only be decided upon by the Great Sanhedrin.

והעזרות – their holiness is greater than the holiness of Jerusalem and it is impossible to renew sanctity other than in the Jewish court of seventy-one, as it states in the Biblical verse (Exodus 25:9): “Exactly as I show you, etc. – so you shall make it,” for all generations. Just as the Tabernacle is holy through the mouth of Moses who is in place of the Great Sanhedrin, even for all generations, the addition of the city [of Jerusalem] and the courtyards – by the mouth of the Great Sanhedrin.

No city on the frontier may be proclaimed an Apostate City, nor three together, but only one or two. This section contains several other laws pertaining to the Apostate City. According to Deuteronomy only cities within the borders of Israel can become an Apostate City which is to be executed. The fear is that if this law is performed on one of the border towns it will encourage raids from neighboring tribes, which would endanger all of Israel. For a similar reason even the Great Sanhedrin was not allowed to declare more than two cities to be Apostate Cities. For obvious reasons declaring a city to be an Apostate City and thereby killing all of its inhabitants might encourage other countries to engage Israel in war.

ואין עושין סנהדראות לשבטים כו' – as we find with Moses who established Sanhedrins, for Moses stands in place of [the Great Sanhedrin] of seventy-one.

Questions for Further Thought:
• Section six is quite apparently a law brought by the mishnaic editor to our mishnah from another source. Why do you think he taught this law here? What light might it shed upon the previous law?

ואין עושין עיר הנדחת – As it is written (Deuteronomy 17:5): “You shall take the man or the woman.” A man or a woman you take out to your gates (i.e., “the public place”), to the Jewish court that is in your city, but you do not take the entire city to your gates (i.e., “the public place”) other than to a special gate.

בספר – [on the border] a city that separates between the Land of Israel and the heathen countries, as it is written, “among you” (Deuteronomy 17:2), but not from the border. And the reason of the verse is, lest the heathens hear and come and lay waste/destroy the Land of Israel; therefore, we do not leave eternal mound of ruins according to the statute of the apostate city, but we only kill all of its inhabitants.

ולא שלשה – [but not three] towns, the apostate city with one Jewish court and in one place. That is to say, each is near to the other, but with two or three places we do it.

ומשה על גביהן הרי שבעים ואחד – for the Biblical verse states (Numbers 11:17): “they shall bear [the burden of the people] with you, [and you shall not bear it alone],” and they will be with you.”

Introduction After having learned in the first five mishnayoth of the chapter how many judges were needed for each type of case, the sixth mishnah gives Biblical proof texts for these numbers.

רבי יהודה אומר: שבעים – Who expounds on the word אתך/with you, that are similar to you, and not that you will sit with them in judgement. But the Halakha does not follow Rabbi Yehuda.

This mishnah basically contains exegetical (midrashic) proofs for the greater Sanhedrin of seventy one and the little Sanhedrin of twenty three.

עדה שופטת – ten who make liable/guilty

The greater Sanhedrin was made up of seventy one and the little Sanhedrin of twenty three.
From where do we learn that the greater Sanhedrin should be made up of seventy one? As it says, “Gather unto me seventy men of the elders of Israel” (Num. 11:16), and when Moses is added to them there is seventy one. Rabbi Judah says: “Seventy.” The greater Sanhedrin was composed of seventy one judges to correspond to the seventy elders plus Moses mentioned in Numbers 11:16. According to Rabbi Judah, the seventy elders included Moses, and therefore the greater Sanhedrin was only to be composed of seventy one.

עדה מצלת – ten who acquit, and learn from this that there needs to be twenty for if they divided it, there would be ten making liable and ten acquitting.

From where do we learn that the little Sanhedrin should be made up of twenty three? As it says, “The assembly shall judge”, “The assembly shall deliver” (Num. 35:24-25), an assembly that judges and an assembly that delivers, thus we have twenty. And from where do we know that an assembly has ten? (1) As it says, “How long shall I bear this evil congregation?” (Num. 14:27) [which refers to the twelve spies] but Joshua and Caleb were not included. And from where do we learn that we should bring three others [to the twenty]? By inference from what it says, “You shall not follow after the many to do evil” (Ex. 23:2), I conclude that I must be with them to do well. Then why does it say, “[To follow] after the many to change judgment” (Ex. 23:2). [It means that] your verdict of condemnation should not be like your verdict of acquittal, for your verdict of acquittal is reached by the decision of a majority of one, but your verdict of condemnation must be reached by the decision of a majority of two. The court must not be divisible equally, therefore they add to them one more; thus they are twenty three. The exegesis used to derive the number 23 for the little Sanhedrin is much more complicated. Firstly, from the verses in Numbers 35:24-25, which refer to an assembly that judges and an assembly that delivers the condemned from being punished, the Rabbis derive that capital cases require the potential to have both a full “assembly” that judges (convicts) and a full assembly that delivers (acquits). Although this is certainly not the simple meaning of this verse, this is the way it is understood in our mishnah. An assembly is taken to mean a group of ten, as proven from the use of the word in Num. 14:27. If two “assemblies” are required than we need at least twenty on a court to adjudicate capital cases. In order to exegetically prove that we need another three, the mishnah turns to Exodus 23:2 and a potential redundancy between the two halves of the verse. The first half states that one should not follow a majority of people in order to do evil, and therefore we could learn that one should follow the majority to do good. However, this is understood to also be the explanation of the second half of the verse, which states that one should follow the majority, clearly to do good. In order to solve this supposed redundancy the mishnah says that the majority needed to convict is not the same as the majority needed to acquit. In order to acquit we only need a majority of one and in order to convict we need a majority of two. The verse is therefore explained in the following manner: when it says “, “You shall not follow after the many to do evil”, it means do not follow a majority of one to convict. When it says “[To follow] after the many to change judgment”, it means you should follow a majority of two to acquit. We have now arrived at the number twenty-two, since if an assembly (10) convicts we will need another assembly of 12 to acquit. In order not to have a court that is even and therefore might not arrive at any decision, they add one more judge.

הטייתך לרעה על פי שנים – This is how the verse (Exodus 23:2) should be read: “You shall neither side with the mighty/multitude to do wrong” – to make guilty via a [majority of] one , so that there would be more than those who acquit; “but to pervert it in favor of the mighty” – with two, even for evil, so that there would be two more declaring guilty than those who acquit. Therefore, perforce, we require twenty-three [judges], for less than ten [judges] who acquit =, we don’t have to say, for it it is written (Numbers 35:25): “And the assembly shall protect (the manslayer from the blood avenger),” and further, we do not find that “guilt” is less than twelve.

And how many should there be in a city that it may be fit to have a Sanhedrin? A hundred and twenty. Rabbi Nehemiah says: “Two hundred and thirty, so that [the Sanhedrin of twenty three] should correspond with them that are chiefs of [at least] groups of ten. In order for a city to be worthy or large enough to merit a little Sanhedrin, which according to mishnah five had to be appointed by the greater Sanhedrin, it had to have 120 permanent inhabitants. According to Rabbi Nehemiah, it had to have 230 inhabitants, ten for each judge. According to Rabbi Nehemiah this is so each judge can act as a chief of at least ten people, which is the smallest judicial appointment according to Ex. 18:21.

ואין בית דין שקול – We don’t make pairs in Jewish courts, for it they would split tdown the middle, it would be half and half – and we would not find giving a verdict according to the majority of votes by a majority of one for good; hence, we add to them one other [judge] so that there would be twenty-three.

Questions for Further Thought:
• Why is a greater majority required for conviction than acquittal?

מאה ועשרים – The Gemara explains that twenty-three judges is a Small Sanhedrin. And three rows of twenty-three apiece sit before them, for if there was a need increase [the number of] judges, they would add from them, and there would be ten idle individuals [available]. These ten individuals are idle from all work and always sit in the House of Study. And two scribes [are available] who write the words of those who acquit and those who find guilty. And two men who announce the order of proceedings, sextons of the Jewish court who flog the guilty and invite the opponents in court, the two opponents [themselves], and two witnesses and two conspiring witnesses and two witnesses who find the previous witnesses to be conspiring, and two treasurers/managers [of the charity], and a third to distribute the tzedakah/charity, since charity is collected by two and distributed by a third, and an artisan doctor [whose task it is] to draw blood, and a scribe, and a teacher of children which [all together] equals one-hundred and twenty.

מאתים ושלשים כדי שרי עשרות – since that is twenty three groups of ten, whereby each judge would be the prince of ten, for less than the princes of ten, we would not find rulership. But the Halakha does not follow Rabbi Nehemiah.