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text: English Explanation of Mishnah Sanhedrin
  ביאור אנגלי על משנה סנהדרין
  Mishnah Yomit by Dr. Joshua Kulp
  
  
  English Explanation of Mishnah Sanhedrin
  
  Introduction
  
  
  
  
  
  
  
  
  
  
  
  Mishnah 1
  
  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.
  Cases concerning property [are decided] by three.  Property cases include disputes arising out of loans, sales, inheritance, gifts and other similar monetary matters.
  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.
  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.
  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.
  
  Mishnah 2
  
  Introduction
  Mishnah two continues to list the numbers of judges needed for different types of cases.
  [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.
  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.
  Questions for Further Thought:
   Why do you think Rabban Shimon ben Gamaliel considered the intercalation of the year to be such an important issue?
  Questions for Further Thought:
   Why do you think Rabban Shimon ben Gamaliel considered the intercalation of the year to be such an important issue?
  
  Mishnah 3
  
  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.
  
  Mishnah 4
  
  Introduction
  Mishnah four deals with the number of judges in cases involving capital crimes.
  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.
  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.
  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.
  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.
  
  Mishnah 5
  
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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?
  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?
  
  Mishnah 6
  
  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.
  This mishnah basically contains exegetical (midrashic) proofs for the greater Sanhedrin of seventy one and the little Sanhedrin of twenty three.
  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.
  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.
  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.
  Questions for Further Thought:
   Why is a greater majority required for conviction than acquittal?
  Questions for Further Thought:
   Why is a greater majority required for conviction than acquittal?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  Mishnah one contains with special rules regarding the High Priest.
  This mishnah can be divided into three basic sections:  1)  the High Priest’s relationship to the court; 2)  the High Priest’s ability to perform halitzah (the release of the widow from the obligation to marry the levir, her dead husband’s brother) and levirate marriage; 3)  the High Priest’s participation in the mourning ritual.
  The High Priest can judge and be judged; he can testify and others can testify against him.  The High Priest is treated like a normal person with regards to the laws of the court.  As we shall see in mishnah two, this is not true with regards to the king.
  He can perform halitzah for another’s wife and others can perform halitzah for his wife or contract levirate marriage with his widow, but he cannot contract levirate marriage since he is forbidden to marry a widow.  The High Priest is basically the same as any other person with regards to the laws of levirate marriage.  If he should die without children, his wife must either marry his brother or his brother must perform halitzah for her.  If his brother should die without children he must perform halitzah for his wife.  He cannot, however, contract levirate marriage with her since he is in general prohibited from marrying a widow (Lev. 21:14).
  If any of his near kin die he may not follow after the bier, rather when the bearers are not visible, he is visible, when they are visible he is not visible, and he may go out with them as far as the city gate, according to Rabbi Meir. Rabbi Judah says, “He may not leave the Temple, as it says, “Nor shall he go out of the Sanctuary”. And when he comforts other mourners the custom is for all of the people to pass by, the one after the other, while the appointed [priest] stands between him and the people. And when he receives comfort from others, all the people say to him, “Let us be your atonement”, and he says to them, “May you be blessed by Heaven.” When they feed him the funeral meal all the people sit around on the ground and he sits on a stool.  The High Priest is severely restricted with regards to his participation in the rituals of burial.  Since contact with the dead causes impurity the High Priest cannot even participate in the burying of his own immediate family (unlike a regular priest who may) (see Lev. 21:10-12).  According to Rabbi Meir, the High Priest is allowed to semi-secretly participate in the burial procession, up until they leave the city gates of Jerusalem (people were not buried within the city confines).  Rabbi Judah states that he may not even participate this much, since the Torah states that he may not leave the Sanctuary at all. If the High Priest needs to participate in the comforting of mourners he may do so, but the “appointed” priest would come in between him and the other people.  According to the Rambam this is to show the honor due to the High Priest, that he shouldn’t be just a part of the crowd. When others comfort him they say, “Let us be your atonement”.  It seems to me that this is to assuage the sense of guilt that the High Priest must feel since he was not able to participate in the burying of his own dead.  When he comforts others he should give them a blessing. When he is fed the traditional funeral meal which would normally be eaten by the mourner while sitting close to the ground, the rest of the people must sit on the ground.  This fulfills two functions:  1)  he retains a higher status than them; 2)  they are able to participate in his sorrow and grief.
  
  Mishnah 2
  
  Introduction
  Mishnah two contains special rules regarding the king.
  The king can neither judge nor be judged, he cannot testify and others cannot testify against him.  The king cannot participate in the regular system of the court.  This is probably due to the fear that the king will threaten the existence of the court if a decision is not found in his favor.  Since he cannot be tried, it is not fitting to allow him to testify.  There is also an issue of honor at stake in this prohibition.  The king’s honor is not just an issue of personal concern but of national concern as well.  Forcing a king to participate in the legal system would, in the mind of the Mishnah, diminish his authority.
  He may not perform halitzah, nor may others perform halitzah for his wife. He may not contract levirate marriage nor may his brothers contract levirate marriage with his wife. Rabbi Judah says:  “If he wished to perform halitzah or to contract levirate marriage his memory is a blessing.” They said to him: “They should not listen to him.”  The king also may not participate in the halitzah ceremony, since part of this ceremony is the woman spitting in front of the dead husband’s brother. This is obviously not respectful to a king.  It is also not a sign of respect for him to have to marry his dead brother’s widow (levirate marriage) in order to bring forth children under his brother’s name.  Since his widow may not remarry, his brothers do not perform halitzah for her or contract levirate marriage with her. Rabbi Judah says that a king can perform halitzah and levirate marriage, and it is actually praiseworthy for him to do so (but not mandatory).  In other words, according to Rabbi Judah, a king is allowed to forgo his own honor.  According to those who respond to him, he is prohibited to do so.
  None may marry his widow. Rabbi Judah says:  “The king may marry the widow of a king, for so have we found it with David, who married the widow of Saul, as it says, “And I gave you my master’s house and my master’s wives into your embrace” (II Samuel 12:8).  According to the first opinion, the widow of a king may not remarry, since this is disrespectful to the dead king.  However, Rabbi Judah finds precedent in David who married Saul’s widow, and therefore he allows all kings to marry other kings widows (this should remind us of MacBeth!).
  
  Mishnah 3
  
  If any of his near kin die he may not go out of the door of his palace. Rabbi Judah says:  “If he wishes to follow the bier he may, since we have found that David followed the bier of Avner, as it says, “And King David followed the bier” (II Samuel 3:31) They answered, “That was only to appease the people.”When they feed him the funeral meal all the people sit on the floor and he sits on a couch.Mishnah three discusses the procedures of mourning if a king’s family member dies.This mishnah deals with funeral procedure when one of the king’s near relatives dies.  Although there is no prohibition in the Torah against the king participating in funerals, the Sages did not think it respectful for a king to be seen in a state of mourning.  Rabbi Judah again finds biblical precedent for the king to participate in the funeral (as he found precedent for the king to marry another king’s widow in mishnah two).   When during the battles between the House of Saul and the House of David, Avner, Saul’s army commander, was murdered by Joab, the commander of David’s army for  having killed Joab’s brother, David goes out after Avner’s bier.  According to Rabbi Judah this is precedent for any king.  The Sages reply to Rabbi Judah that David only did so to appease the people so that they wouldn’t say that Joab killed Avner with David’s permission.  In other, normal, cases it is forbidden for the king to participate in the funeral procession.When the people feed the king his funeral meal, they sit on the floor, to show their participation in his grief and he sits on a couch, since he is not allowed to truly mourn.  Note that the high priest was allowed to sit on a low stool.  The Sages were less concerned about the respect shown for the high priest than they were for the respect shown towards the king.
  
  Mishnah 4
  
  Introduction
  Mishnah four deals the rights and responsibilities of a king.
  He may send forth the people to a battle waged of free choice by the decision of the court of seventy one.  The king has a right to take his people out to war, but he first must receive permission from the Sanhedrin.  This is probably seen to be a check to make sure a king does not take his people out to dangerous and frivolous wars.
  He may break through [the private domain of any man] to make himself a road and none may protest him. The king’s road has no limit.  The king has a right to expropriate anyone’s property if he should need the property to make a path.  Furthermore, this path has no limits to its size.  There are some commentators who say that this section of the mishnah is applicable only if the king is going out to war.
  Whatsoever the people take in plunder they must place before him, and he may take first.  When the people plunder conquered cities after a victorious war, the king may have his first pick at the plunder.
  “And he shall not have many wives” (Deut. 17:17) eighteen only. Rabbi Judah says: “He may take many wives provided they don’t turn his heart away [from worshipping God]. Rabbi Shimon says:  “Even one that might turn his heart away, he should not marry.  Why then does it say, “He shall not have many wives”, even if they are like Avigayil.  The remainder of the mishnah is a midrash (exegesis) on Deuteronomy 16-19.  The first midrash discusses the limitation on the number of wives a king may take.  According to the first opinion he may only (!) have 18 wives.  Rabbi Judah emphasizes the continuation of verse 17 which says, “lest his heart go astray.”  According to Rabbi Judah the verse does not prohibit a certain number of wives, rather it prohibits the king from taking any wife who will lead his heart astray.  The Bible itself relates that this is exactly what happened with Solomon in his old age (See I Kings 11).  Rabbi Eliezer responds to Rabbi Judah and says that if the verse had only meant to say that he may not marry women who will lead his heart astray then why did it state a specific number.  Therefore, Rabbi Eliezer says that he may not marry many wives even if they were like Avigayil, David’s wife, who is the prototypical example of a smart and good wife (see I Samuel 25:3).
  “He shall not keep many horses” (Deut. 17:16) enough for his chariot only.  When the Torah states that the king may not have many horses, it means to limit him to those which he needs for his chariot only.
  “Nor shall he amass silver and gold to excess” (Deut. 17:17) enough to pay his soldier’s wages.  The king may only have enough gold to pay his soldiers.
  He must write a Torah scroll for himself; when he goes forth to battle he shall take it with him, and when he returns he shall bring it back with him; when he sits in judgement it shall be with him, and when he sits to eat it shall be with him, as it says, “Let it remain with him and let him read it all his life” (Deut. 17:19)  The Torah states that the king should have a Torah scroll and learn it all the days of his life.  The mishnah emphasizes that this Torah scroll must always be with him, even when he goes out to war!  The king is to always be reminded that he serves a higher King, God.  Keeping the Torah with him at all times reminds him that his authority is secondary to the ultimate authority of God, as revealed in the Torah.
  Questions for Further Thought:
   Section four:  What is the difference in opinion between the first opinion (the king may take 18 wives) and Rabbi Eliezer’s opinion?
  Questions for Further Thought:
   Section four:  What is the difference in opinion between the first opinion (the king may take 18 wives) and Rabbi Eliezer’s opinion?
  
  Mishnah 5
  
  None may ride his horse and none may sit on his throne and none may make use of his scepter.No one may see him when his hair is being cut or when he is naked or when he is in the bath house, for it says, “You shall set a king upon yourself” (Deut. 17:15) that his awe should be over you.Mishnah five teaches that the people must respect and have awe for a king.This mishnah continues the midrash on Deut. 17 that began in the previous mishnah.  The Torah states that the people of Israel shall set a king upon themselves.  The Torah uses a typical syntax repeating the verb “to set” twice.  In usual fashion, the Rabbis see this as an unnecessary repetition of a word and therefore a legitimate basis for a midrash.  The midrash is that the Torah mandates awe of the king, and therefore one is not allowed to not sit in his place, use his scepter or see him in a position of compromise.
  
  
  
  
  
  Mishnah 1
  
  Cases concerning property [are decided] by three [judges].This [litigant] chooses one and this [litigant] chooses one and then the two of them choose another, according to Rabbi Meir. But the Sages say:  “The two judges choose the other judge.”This [litigant] can invalidate this one’s judge, and this [litigant] can invalidate this one’s judge, according to Rabbi Meir. But the Sages say:  “When is this so?  When they bring proof against them that they are relatives or otherwise invalid; but if they are valid and experts, he cannot invalidate them.This [litigant] may invalidate this one’s witnesses and this [litigant] may invalidate this one’s witnesses, according to Rabbi Meir. But the Sages say:  “When is this so?  When they bring proof against them that they are relatives or otherwise invalid; but if they are valid, he cannot invalidate them.Chapter Three begins to discuss the court procedure in cases of financial matters, which only require three judges.  The first mishnah discusses the selection of judges.This mishnah contains three disputes between Rabbi Meir and the Sages with regards to the selection of judges and witnesses in cases concerning property disputes.  All agree that the first two judges are selected by the litigants themselves, each litigant choosing one judge.  However, Rabbi Meir and the Sages dispute with regards to the selection of the third judge.  Rabbi Meir holds that the litigants together select a third judge and the Sages hold that the first two judges, those already selected by the litigants, are the ones to select the third judge.With regards to the invalidation of the judges, Rabbi Meir holds that each litigant can indiscriminately invalidate the judge who was chosen by the opposing litigant.  The Sages hold that the judges may only be invalidated on objective grounds, for either being relatives of the litigant or otherwise invalid.  (We will learn more about the what cause a person to be invalid to be a a judge in mishnah three).  If the judges are otherwise valid the opposing litigant may not disqualify them.The Sages and Rabbi Meir have basically the same dispute with regard to witnesses.  Note, that in this case Rabbi Meir’s opinion is much more radical.  If a litigant can disqualify his rival’s witnesses without any due cause, how could anyone ever be convicted.  The Talmud deliberates at length on this problem and makes several suggestions:  1)  the litigant can only disqualify witnesses when there is only one witness.  In such a case, since there are not the requisite number of witnesses, the litigant is not truly destroying his rival’s case; 2)  the mishnah deals with a case where a person has two sets of witnesses, and the rival disqualifies only one set; 3) the rival has another witness who testifies with him that the other witnesses are disqualified; 4) the litigant claimed that the judges and witnesses were not valid.  When it is established by independent evidence that he told the truth about the judges, he is believed with regard to the witnesses.In any case, from the fact that there are four solutions to this problem, we can see how puzzling Rabbi Meir’s opinion truly is.
  
  Mishnah 2
  
  Introduction
  This mishnah deals with the ability of the litigant to retract on a deal he made before the trial began.
  This mishnah contains another two disputes between Rabbi Meir and the Sages.  The subject in this mishnah is a litigant’s ability to retract when he has allowed the opposing litigant to suspend the usual court rules.
  If one litigant said to the other, “I accept my father as trustworthy”, or “I accept your father as trustworthy”, or “I accept three herdsman as trustworthy”, Rabbi Meir says, “He may retract.” But the Sages say, “He cannot retract.”  Usually relatives of either litigant are invalid as either judges or witnesses.  Furthermore, criminals are not accepted as judges or witnesses.  Herdsman were assumed to be thieves, since it was assumed that they would allow their herds to graze in others’ fields.  However, Rabbi Meir and the Sages agree that if one was to accept a relative or a criminal as a judge or witness they could act as such.  On the other hand, Rabbi Meir says that if, during the trial or even after the trial the litigant who accepted the relative or criminal were to change his mind, he could do so and ask for a retrial.  The Sages say he may not retract.  Once he has accepted the relative or the criminal he must accept the decision they make.
  If one must take an oath before his fellow, and his fellow said to him, “Vow to me by the life of your head”, Rabbi Meir says, “He may retract.” But the Sages say, “He cannot retract.”  In certain circumstances the defendant will have to take an oath that he doesn’t owe the plaintiff money or property (on rarer occasions the plaintiff is allowed to take an oath and collect from the defendant).  The usual oath is one taken in front of a court, and it was considered an extremely grave matter.  However, all agree that the other litigant could allow the litigant who must take the oath to take a more personal oath, one by his own head, and not have to take an oath in front of the court.  Again, according to Rabbi Meir, if at a later point he wanted his opposing litigant to take an oath in front of the court, an oath that was considered to be graver, he may do so.  As in the previous case, Rabbi Meir allows him to retract, whereas the Sages do not.
  Questions for Further Thought:
   Why does Rabbi Meir allow the person to retract?  What effect will Rabbi Meir’s permission to retract have on the opposing litigant?
  Questions for Further Thought:
   Why does Rabbi Meir allow the person to retract?  What effect will Rabbi Meir’s permission to retract have on the opposing litigant?
  
  Mishnah 3
  
  Introduction
  Mishnah three lists those people disqualified from testifying and judging.
  And these are they  which are not qualified [to be witnesses or judges]:A dice player, a usurer, pigeon racers, or traffickers in Seventh Year produce. Rabbi Shimon said:  “In the beginning they called them ‘gatherers’ of Seventh Year produce, but after the oppressors grew many they changed this and called them ‘traffickers’ of Seventh Year produce.” Rabbi Judah said:  “This applies only if they have no other trade, but if they have some other trade other than that, they are not disqualified.” There are four types of people who are disqualified from acting as witnesses or judges:  1)  The first is a dice player, in other words a gambler.  Such a person cannot testify since he is known to be a liar, especially with regards to monetary matters.  Another reason is that he doesn’t participate constructively in building society. 2)  A usurer.  He is also probably considered to not be trustworthy in monetary matters.  3)  A pigeon racer.  Racing pigeons was a form of gambling.  4)  Those who sell produce grown during the Seventh Year. According to Lev. 25:5-7 produce grown in the fields during the Seventh Year may be eaten by its owners, but it may not be sold.  One who therefore sells Seventh Year produce is engaging in forbidden business practices which according to our mishnah make him not trustworthy to testify or act as a judge. Rabbi Shimon points out that this law actually was different in an earlier period. According to Rabbi Shimon at first the law was stricter and forbade even those who gathered Seventh Year produce from testifying or judging.  Although eating from the fields was permitted, a person who gathered the produce was suspected of later selling it, which was prohibited.  Therefore, they originally forbade even those who gathered Seventh Year produce from testifying. However, once the oppressors grew too many they relaxed the prohibition.  In the Talmud it is explained that the “oppressors” refers to the Roman government which demanded taxes from the produce grown on the land, even during the Seventh Year.  The Rabbis therefore permitted a person to gather his produce and give it for taxes.  When this happened they decided to allow people who gathered Seventh Year produce to testify. Rabbi Judah adds an important qualification on those who are prohibited from testifying.  These people are disallowed to testify only if they have no other profession.  If gambling or racing pigeons was only a hobby or an irregular activity they could still act as witnesses or as judges.
  Questions for Further Thought:
   What is the reasoning behind Rabbi Judah’s opinion?
  Questions for Further Thought:
   What is the reasoning behind Rabbi Judah’s opinion?
  
  Mishnah 4
  
  Introduction
  Mishnah four lists which relatives are forbidden to testify or act as judges at a trial.
  These are the relatives [that are not qualified to be witnesses or judges]:A suitor’s father, brother, father’s brother, mother’s brother, sister’s husband, father’s sister’s husband, mother’s sister’s husband, mother’s husband, father-in-law, or wife’s sister’s husband them and their sons and their sons-in-law; also the suitor’s step-son only [but not the stepsons’ sons]. Rabbi Yose said, “Such was the mishnah of Rabbi Akiva, but the first mishnah taught: ‘a suitor’s uncle, or his uncle’s son, and all that are qualified to be his heir.  The first section lists relatives who are disqualified from testifying.  The list is self explanatory, and only a few require explanation.  A mother’s husband refers to someone who is not the suitor’s father.  Any son or son-in-law of any of these listed relatives is likewise forbidden to testify.  For instance one’s father’s brother’s son (a cousin) is forbidden to testify.  The only exception is that the suitor’s stepson, i.e. his wife’s son from another marriage, is forbidden to testify but stepson’s son is allowed. Rabbi Yose gives us a glimpse into the development of the Mishnah.  The previous clause was the mishnah of Rabbi Akiva, who lived from about 50-135 C.E.  Rabbi Yose then relates the way it was taught before this time.  While there are some legal differences between the two formulations, the most basic difference is that “first mishnah” used language that approximated Biblical style (see Lev. 25:49).  This change from the earlier language to the later style which was more distinct from the Biblical language, may signify the growing independence of the Oral Torah from the Written Torah.  It seems likely that in an earlier stage the Oral Torah was usually preserved as an exegesis or midrash on the verses of the Torah.  The advantage to this system was that the Torah was a text known to most.  The second advantage was that it was clear that Rabbinic law attained its authority by its being an interpretation of Biblical law.  However, the biggest detriment was its lack of organization.  Many laws appear in parallel forms in several books of the Torah.  For instance laws concerning slavery appear in Exodus, Leviticus and Deuteronomy.  Laws concerning the redemption of the first born appear in Exodus, Leviticus, Numbers and Deuteronomy.  One who wished to know the law would not know where to find it.  One of the innovations of Rabbi Akiva was to sort Jewish law into topical tractates.  In our mishnah we see that as this processed developed the language of the laws changed from Biblical to Rabbinic Hebrew. As far as substantive differences between the first mishnah and Rabbi Akiva’s mishnah.  There are three potential differences:  his mother’s sister’s husband, his mother’s husband and his wife’s sister’s husband.  These three men are not potential inheritors and therefore could testify according to the first mishnah, but they may not according to Rabbi Akiva’s mishnah.
  Moreover all that were kinsmen at the time [are disqualified]; but kinsmen that have ceased to be kinsmen become qualified.” Rabbi Judah says:  “If a man’s daughter died and left children, her husband still counts as a kinsman.”  Only if the relative is a current relative may he not testify.  If the relationship is by marriage and it is severed through divorce before the trial, the formal relative may testify.  Rabbi Judah states that there is one exception to this rule.  If a daughter married a man and had children the husband cannot testify, even after the daughter dies.  Since the children bind the husband to the grandfather, he is still considered to be a relative.
  
  Mishnah 5
  
  A friend or an enemy [is disqualified]. “A friend”: this is one’s groomsman. “An enemy”:  anyone whom he has not spoken to in three days because of anger.They replied:  “Israelites are not suspected of such.”Mishnah five continues to discuss those people who are disqualified from testifying or acting as judges.The first clause in the mishnah states that one may not testify or judge in a trial involving one’s friend or enemy.  The next two clauses define the first clause.  “A friend” who is disqualified from testifying or judging is a man’s groomsman, a person who helped him celebrate his wedding.  “An enemy” is anyone with whom one has not spoken for three days due to anger.It must be assumed that the first three clauses are a continuation of Rabbi Judah’s words, begun in the previous mishnah.  The Sages in section 1d respond to Rabbi Judah by claiming that Jews are not suspected of lying in court because they are testifying with regards to a friend or enemy.  Therefore, a person may testify and judge in cases involving a friend or an enemy.
  
  Mishnah 6
  
  How do they check the witnesses?They bring them in and warn them, and then they take them out and leave behind the most important of [the witnesses].And they would say to him:  “State [for us], how do you know that this one is in debt to this one?” If he said, “He said to me, ‘I am in debt to him’, or ‘So-and-so said to me that he was in debt to him’”, he has said nothing. He must be able to say, “In our presence he acknowledged to the other one that he owed him 200 zuz.”Afterward they bring in the second witness and check him.If their words were found to agree, the judges discuss the matter.If two say, “He is not guilty” and one says, “He is guilty”, he is not guilty. If two say, “He is guilty” and one says, “He is not guilty”, he is guilty. If one says, “He is not guilty”, and one says, “He is guilty”, and even if two declared him not guilty or declared him guilty while one said, “I do not know”, they must add more judges.Mishnah six begins to describe the process of the interrogation of the witnesses.This mishnah describes the process by which the judges would examine the testimony of the witnesses.  Keep in mind that the mishnaic court system did not include lawyers.  Rather the discussion was conducted directly between the litigants and the judges.(1)  The first step is to warn the witnesses of the seriousness of testifying in a court.  (2)  The second step was to remove all but one of the witnesses, so that they would not merely mimic each other’s testimony.  Jewish law is strict in requiring two independent witnesses, and one may not therefore learn of his testimony from another.  (3)  They could now begin interrogating the most important of the witnesses.  The witness is asked how he received that information that so-and-so owes someone money.  The only answer that is accepted as valid testimony is for the witness to say that he saw the defendant actually admit to the plaintiff that he is in debt to him.  If a third party told the witness that the defendant was obligated, or even if the defendant himself admitted such, the testimony is not accepted.  (4)  Afterwards they repeat the process with the second witness.  (5)  If the testimony of all of the witnesses is found to be in agreement, the judges discuss the matter.  (6) A majority decision is always accepted as binding, as long as all of the judges have made a conclusive decision. If one of the judges said that he did not know they must add more judges until there are three judges who have actually rendered decisions.  In other words, one who cannot render a decision is not counted as one of the necessary three judges to make up a court of three.
  
  Mishnah 7
  
  When the judges reached their decision they would bring in the litigants.The chief among the judges says:  “You, so-and-so are not obligated”, or “You, so-and-so are obligated”.And from where do we know that after one of the judges has gone out that he may not say, “I declared him not obligated and my colleagues declared him obligated, so what can I do since they outvoted me?” Of such a one it says, “Do not go about as a talebearer amongst your people” (Lev. 19:16) and it also says, “He that goes about as a talebearer reveals secrets” (Proverbs 11:13).Mishnah seven describes the court procedures at the end of the trial.At the end of the trial, when the judges have reached their verdict the most important of them would announce whether or not the defendant was obligated to pay the plaintiff.  In addition the mishnah warns judges that when the trial is completed the judge who disagreed with the verdict of the majority may not walk out and announce to the public his disagreement.  Such a person is considered to be the type of “talebearer” censured by the Torah.
  
  Mishnah 8
  
  So long as a litigant can produce proof he may overturn the verdict.If they had said to him, “Bring all of the proofs that you have within thirty days” and he brought them within thirty days, the court may overturn the verdict. But if he brought any proof after thirty days, the court cannot reverse the verdict. Rabban Shimon ben Gamaliel said:  “What could he have done that he did not find [the proof] within thirty days but found it after thirty days?”If they had said to him, “Bring witnesses” and he said, “I have no witnesses”, or [if they said], “Bring proof”, and he said, “I have no proof”, and he later found proof or witnesses, then they are totally invalid. Rabban Shimon ben Gamaliel said:  “What could he have done that he did not know that he had witnesses, then found witnesses, or that he did not know that he had proof, then found proof?If they had said to him, “Bring witnesses” and he said, “I have no witnesses”, or [if they said], “Bring proof”, and he said, “I have no proof”, but when he saw that he was about to be found obligated, he said, “Come near, so-and-so and so-and-so and testify for me!”, or if he brought forth some proof from his wallet, then they are totally invalid.Mishnah eight discusses the ability of the litigants to overturn the verdict by bringing new evidence (physical proof or witnesses) after the trial.Mishnah eight discusses the situation where a person did not bring proof or witnesses until after he was found to be obligated.  If the court had not told him that he had a time limit on bringing such evidence, he may always bring it and thereby give the judges reason to overturn the verdict.  If, however, the court had set a time limit on his bringing proof or witnesses, and that time limit elapsed, he may no longer attempt to overturn the verdict.  Since the court set a time limit, anything brought afterwards is not considered relevant to the trial.  Rabban Shimon ben Gamaliel disagrees with this time limit.  According to him even if a time limit was set, if the defendant should find new evidence he may bring it to the court’s attention and have the decision overturned.  In other words there is a dispute between Rabban Shimon ben Gamaliel and the Sages (the anonymous opinion), the former holding that time limits are irrelevant and the latter that they are valid.The final clause of the mishnah contains an opinion to which even Rabban Shimon ben Gamaliel agrees.  Even though he generally allows evidence to be brought later, if it is clear that the defendant could have known about the evidence and chose not to use it and then produced it just at the moment when the verdict was about to be delivered against him, the evidence is invalid.  In such a case we may rightfully wonder why he didn’t bring the evidence earlier and we suspect him of lying.
  
  
  
  
  
  Mishnah 1
  
  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.
  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.
  Capital cases require twenty three judges, while non-capital cases require only three.  This law was already learned in chapter one.
  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.
  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.
  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.
  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.
  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?
  Questions for Further Thought:
   Why did the Sages insist on these differences between capital and non-capital cases?  What is their function?
  
  Mishnah 2
  
  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.
  
  Mishnah 3
  
  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.
  
  Mishnah 4
  
  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.
  
  Mishnah 5
  
  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.
  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.
  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.
  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.
  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.
  
  
  
  
  
  Mishnah 1
  
  They used to examine witnesses with seven inquiries:  (  In what week of years? (2) In what year?  (3)  In what month?  (4)  On what date in the month?  (5)  On what day?  (6)  In what hour?  (7)  In what place? Rabbi Yose says:  [They only asked:] On what day?  In what hour?  In what place?[Moreover they asked:]  Do you recognize him?  Did you warn him?If one had committed idolatry [they asked the witnesses:]  What did he worship and how did he worship it?Chapter five begins to discuss how the judges examine the testimony of the witnesses.This mishnah lists the questions that the judges would ask the witnesses. The purpose of the first set of questions was to make sure that the witnesses were actually there at the scene of the crime and not somewhere else.  By pinpointing the date and place, the witnesses are in essence promising that no one else could say they were somewhere else when the crime allegedly occurred.  According to Jewish law, if witnesses are found to testify about a crime and it turns out that they were not even there when the crime as committed, they receive the punishment that the accused would have received.Rabbi Yose holds that the judges only need to ask three questions, instead of the seven asked according to the first opinion in the mishnah.  These three questions are sufficient in order to establish when and where the crime was committed.  The Sages, whose anonymous opinion is taught in section one, hold that by asking many questions they can check to see if the witness is truly confused with regards to his testimony.  If he gets confused then it is a sign that his testimony may not be accurate.Aside from the questions of time and place the judges would also ask the witnesses if they recognized the accused, and in the case of murder they would also ask if the witnesses recognized the murdered person.  Furthermore they would ask the witnesses if they had warned the accused.  According to Jewish law a person cannot be executed or receive corporal punishment unless he had previously been warned that if he were to commit this crime the punishment would be death or flogging.If the trial was for idol worship, which according to Jewish law is a capital offense, they would ask the witnesses what type of idol the accused worshipped and how he worshipped it.
  
  Mishnah 2
  
  The more a judge examines the evidence the more he is deserving of praise. Ben Zakkai once checked with regards to the stalks of figs.What is the difference between inquiries and examinations? With regards to inquiries, if one [of the two witnesses] says “I do not know”, their evidence becomes invalid. But if to one of the examinations one answered, “I do not know”, or even if they both answered, “We do not know”, their evidence remains valid. Yet if they contradict each other, whether during the inquiries or examinations, their evidence becomes invalid.Mishnah two continues to discuss the inquiries and examinations performed on the witnesses by the judge.This mishnah discusses the questions regarding the circumstances of the crime itself.  Although the mishnah lists seven official “inquiries” that must be asked, with regards to “examinations” the more the judge asks the better able he is to ascertain the truth.  Ben Zakkai (who is usually called Rabban Yochanan ben Zakkai) once even checked to see if the witnesses who testified that a murder was committed under a fig tree knew what the stalks of the figs looked like.The second half of the mishnah discusses cases where one of the witnesses does not know the answer to one of the questions.  If the witness could not say where the crime took place or when it took place, both of the witnesses testimony becomes invalid.  These are called “inquiries”.  However, if one cannot answer with certainty one of the substantive questions regarding the crime, the rest of his testimony is not invalidated.  These are called “examinations”.  Even if both cannot answer the question, the other parts of their testimony are not necessarily invalidate.  In other words, not knowing a detail does not necessarily disqualify all of their testimony.  Rather the judges will have to decide when making their decision if there exists enough testimony to convict the accused.If, however, the two witnesses disagree with regards to a detail, then all of their testimony is invalid.
  
  Mishnah 3
  
  Introduction
  Mishnah three deals with invalidating the testimony due to discrepancies between the testimony of the two witnesses.
  This mishnah deals with discrepancies between the testimony of the witnesses with regards to the time at which the crime was committed.
  If one said, “On the second of the month”, and the other said, “On the third”, their evidence remains valid, since one may have known that the month was intercalated and the other may not have known that the month was intercalated. If one said, “On the third” and the other said, “On the fifth”, their evidence is invalid.  If there is a discrepancy of one day between the witness’s testimony it is not invalidated.  This is due to the intercalation of the Jewish month.  Jewish months go according to the cycles of the moon.  There are between 29 and 30 days in a lunar month.   Therefore some months are of 29 days and some are of 30.  In the time of the Mishnah the Jewish calendar was not yet fixed.  This meant that at the end of every month, on what was potentially the 30th day of the month, the court would need to decide if the current day was the first of the next month or the last of the previous month.  According to our mishnah, witnesses may not know that the previous month was actually a 30 day month and therefore they may not know the exact current date.  Hence, a one day discrepancy does not invalidate their testimony.  A two day discrepancy does, however, invalidate their entire testimony.
  If one said, “At the second hour”, and the other said, “At the third”, their evidence remains valid. If one said, “At the third hour”, and the other said, “At the fifth”, their evidence becomes invalid. Rabbi Judah says:  “It remains valid.  [But] if one said, ‘At the fifth hour’ and one said ‘At the seventh’, their evidence becomes invalid, since at the fifth hour the sun is in the east and at the seventh it is in the west.  At the time of the Mishnah daytime was divided into 12 hours, no matter how long the actual day.  During the summer the hours would be longer and during the winter they would be shorter. A one hour discrepancy between the two witnesses is not significant and therefore does not invalidate their testimony.  This makes strong sense if we remember that they certainly did not have clocks in the time of the Mishnah.  A two hour discrepancy does invalidate the testimony.  It is assumed that although they did not have clocks, people were able to chart the sun and thereby keep rough track of time.  Rabbi Judah disagrees.  According to him sometimes even a two hour discrepancy between the witnesses does not invalidate the testimony.  If the discrepancy was all within one period of the day, it does not invalidate the testimony.  If, however, it was between the fifth and seventh hour, in other words between the first half and the second half of the day, at the time when the sun would pass from the east to the west, the testimony would be invalidated, since this is a point of time that most people would recognize.
  
  Mishnah 4
  
  They afterward bring in the second witness and examine him.If their words were found to agree together they begin [to examine the evidence] in favor of acquittal.If one of the witnesses said, “I have something to argue in favor of his acquittal”, or if one of the disciples said, “I have something to argue in favor of his conviction”, they silence him.If one of the disciples said, “I have something to argue in favor of his acquittal”, they bring him up and set him among them and he does not come down from there all day. If there is anything of substance in his words they listen to him. Even if the accused said, “I have something to argue in favor of my acquittal”, they listen to him, provided that there is substance to his words.Mishnah four deals with the court procedure after the testimony has been presented.After the second witness is examined, the judges begin to examine the evidence.  They first examine evidence that might lead to the accused person’s acquittal.  The witnesses are not allowed to testify again, even if they know testimony that might lead to acquittal.  The disciples, those students of the Sages who sat in rows in front of the judges, were not allowed to speak in favor of conviction.  If, however, one of the students was able to raise a point in favor of acquittal, he would be promoted to one of the judge’s seats and from there he could say what he has to say.  Finally, the accused himself may testify on his own behalf, provided his claim has some substantial basis.
  
  Mishnah 5
  
  If they find him not guilty, he is discharged, if not, it [the trial] is adjourned till the following day. During this time they [the judges] go about in pairs, practice moderation in food, drink no wine the whole day, and discuss the case throughout the night.Early next morning they reassemble in court. He who is in favor of acquittal states, ‘I declare him innocent and I stand by my opinion.’ While he who is in favor of condemnation says: ‘I declare him guilty and stand by my opinion.’ One who [previously] argued for conviction may now argue for acquittal, but one who [previously] argued for acquittal may not now argue for conviction. If they have made any mistake, the two judges’ scribes are to remind them.If they find him not guilty, they discharge him.If not, they take a vote. If twelve acquit and eleven condemn, he is acquitted. If twelve condemn and eleven acquit, or if eleven condemn and eleven acquit and one says, ‘I do not know,’ or even if twenty-two acquit or condemn and a single one says, ‘I do not know,’ they add to the judges.Up to what number is the court increased? By twos up to the limit of seventy-one.If thirty-six acquit and thirty-five condemn, he is acquitted. But if thirty-six condemn and thirty-five acquit, the two sides debate the case together until one of those who condemn agrees with the view of those who are for acquittal.Our mishnah deals with the end of the trial procedure, before the final verdict is pronounced.  Note that the mishnah gives numerous opportunities for a judge who voted for conviction to overturn his ruling and vote for acquittal.  The Rabbis were very cautious that an innocent man should not be found guilty.Our mishnah describes the court’s procedure after an initial vote has been taken.  If at any point the defendant is found to be innocent the trial is over and he is dismissed. If after the initial vote he is found to be guilty, the judges adjourn for the day in order to “sleep” on the case.  During this time the judges continuously debate the merits of the case, and neither eat a lot nor drink wine.When they reassemble the next morning each judge is asked again to state his opinion.  A judge may change his vote from a vote for conviction to a vote for acquittal, but not vice versa.  If they make a mistake and do not remember how they voted the scribes who recorded the previous vote remind them.Again, after the second vote, if he is found to be innocent he is dismissed.  In order to convict they need a majority of two votes.  In a court of twenty three, the requisite number for a capital case, a conviction would therefore require thirteen in favor of conviction with only ten opposed.  If a judge states that he does not know whether to convict or acquit he is not counted as part of the quorum of judges.  Therefore, even if 22 judges either convict or acquit and one states that he doesn’t know, they need to add more judges in order to fill the quorum of twenty three.  These judges who are added in are, as we learned in chapter four, mishnah four, moved up from the ranks of the disciples who sit before the judges.  They continue to add judges until they reach either a majority of two in favor of conviction or a majority of one in favor of acquittal.  The maximum number of judges is 71, which is the number of the Great Sanhedrin.  If, even after there are 71 judges there is still a majority of only one in favor of conviction, they keep discussing the merits of the case until one who had voted for conviction changes his mind and votes for acquittal.  Note, that one who had already voted for acquittal may not change his mind and vote now for conviction, as we learned in the beginning of the mishnah.
  
  
  
  
  
  Mishnah 1
  
  When the trial is completed he [the condemned] is led forth to be stoned.The place of stoning was outside of the court, as it is says, “Bring out him that has cursed” (Lev. 24:14).A man was stationed at the door of the court with the handkerchiefs in his hand, and a man on a horse was stationed at a distance yet within sight of him. If one says, ‘I have something [further] to state in his favor’, he [the signaler] waves the handkerchief, and the man on the horse runs and stops them. And even if he [the convict] himself says, ‘I have something to plead in my own favor’, he is brought back, even four or five times, providing, however, that there is substance in his assertion.If then they find him innocent, they discharge him.But if not, he goes forth to be stoned, and a herald precedes him [crying]: so and so, the son of so and so, is going forth to be stoned because he committed such and such an offense, and so and so are his witnesses. Whoever knows anything in his favor, let him come and state it.”The sixth chapter of Sanhedrin deals with the execution by stoning of a person convicted of a capital crime.  Although stoning sounds like quite a brutal death, and it certainly must have been painful, as we read the chapter try to keep in mind that execution was an acceptable punishment in all societies in the ancient world.  It is also mentioned numerous times in the Bible.  Stoning as a mode of execution is also mentioned many times in the Bible.  It would be anachronistic of us to expect the Rabbis to exclude the possibility of execution.  On the other hand, you should note how cautious the Rabbis were in even theoretically punishing someone through execution.  The possibility of the convict’s being exonerated always remained open, even until the last moment.  Even while performing the execution the Rabbis were extremely concerned for the respect shown to the convict’s body, as we will see in later mishnayoth.  Finally, we must keep in mind that the requirements for proper testimony were so strict that convicting someone would be extremely difficult.  Indeed, execution was probably rarely, if ever, carried out, at least according to the rules of Jewish law.Our mishnah describes the process of stoning, one of the four methods of execution which the mishnah describes.  The other three will be described later.The stoning was not done at the place of the trial, but rather further away from the city.  This is proven from a verse in Leviticus which describes taking out the person who cursed God, a capital crime according to the Torah.  According to our mishnah “taking out” implies that they took him out of the city.There are two functionaries described in our mishnah:  one who would hold a handkerchief, or flag of some sort and would stay near the court, and one who would ride on a horse and stand some distance from the first man, but still be able to see him.  If someone came and offered testimony that would exonerate the convict, the man with the handkerchief would wave and the man on the horse would see the sign and ride out and halt the execution.  Even if the convict himself brought up new testimony they would halt the execution, provided he made a substantial claim.  If at any time they found in his favor, he would be immediately dismissed.  Although this might be a rare occurrence, being so late in the process, nevertheless the mishnah considers it important to remind us that it is never to late to change a verdict from guilty to innocent.As they are bringing the convict out to be stoned a herald would walk in front of him announcing who he was and why he was being executed.  We might have assumed that the purpose of such a custom would be to make an example of the accused, and thereby prevent others from repeating his crime.  However, the mishnah does not describe this as the reason for the herald’s crying out.  Rather, this is yet another opportunity to find someone to exonerate the convict, and thereby prevent an innocent person’s blood from being shed.
  
  Mishnah 2
  
  Introduction
  Mishnah two discusses the confession that the convict is to make before he is executed.  In Rabbinic theology, the confession allows the execution to expiate the convict of his crime, thereby causing him to die clean of all sins.
  When he is about ten cubits away from the place of stoning, they say to him, ‘confess’, for such is the practice of all who are executed, that they [first] confess, for he who confesses has a portion in the world to come. For so we find in the case of Achan, that Joshua said to him, “My son, pay honor to the Lord, the God of Israel, and make confession to him.  [Tell me what you have done, do not hold anything back from me.” And Achan answered Joshua and said, “It is true, I have sinned against the Lord the God of Israel, and this is what I have done” (Josh. 7:19-20). And how do we know that his confessions made atonement for him? As it says, “And Joshua said, “What calamity have you brought upon us!  The Lord will bring calamity upon you this day” (Josh. 7:35),  [meaning] this day you are a calamity, but you are not to be a calamity in the next world. And if he does not know how to confess, they say to him, “Say, may my death be an expiation for all my sins.”  When the convict reaches ten cubits distance from the place where he is to be stoned, he is asked to confess of his crimes.  The mishnah teaches that anyone who confesses, no matter how heinous their crime, has a place in the world to come.  This lesson is based the story of Achan in the book of Joshua.  When Joshua conquered Jericho, the people were not supposed to take anything from the city.  Rather they were supposed to kill anything that was alive and bring only the silver and gold to the treasury.  Achan violated this ruling and took from the proscribed property of Jericho.  As a punishment God causes Israel to lose their subsequent battle at Ai (Joshua, chapter 7).  When Joshua figures out that their loss was due to Achan’s taking from the proscribed property, he sentences Achan to death for having violated God’s word not to take from the property of Jericho.  Joshua requests of Achan to confess his crime, which he subsequently does.  The innovation that our mishnah makes is that this confession expiates Achan of his crime and Achan therefore has a place in the world to come.  Joshua says to Achan, “What calamity have you brought upon us!  The Lord will bring calamity upon you this day”.  The simple sense of the verse is that God is punishing Achan and carrying out the punishment today.  The midrashic reading of our mishnah is that God is punishing Achan only today, and he will not punish him tomorrow.  Achan, therefore, has a place in the world to come. Even one who does not know how to confess is taught how to do so.  The Rabbis are concerned that although the criminal’s time in this world is drawing to a close, he should still be able to have a share in the world to come.
  Rabbi Judah said: “If he knows that he is a victim of false evidence, he can say: may my death be an expiation for all my sins but this.” They [the sages] said to him: “If so, everyone will speak likewise in order to clear himself.”  The mishnah ends with a dispute between Rabbi Judah and the Sages.  According to Rabbi Judah, if the convicted person does not believe that he was guilty, he need not ask for forgiveness for this sin.  Rather he can make a general statement, asking for forgiveness from other sins.  The Sages disagree with Rabbi Judah.  If convicted people were allowed to make such a confession, everyone would do so, in order to give the impression that they were dying innocent.  Rather, if he will not confess to this crime he is not allowed to confess to any crime.
  Questions for Further Thought:
   Section two:  Why are the Sages so afraid of the convicted person not confessing to this specific sin?  What do they mean when they say “everyone will speak likewise in order to clear himself?”
  Questions for Further Thought:
   Section two:  Why are the Sages so afraid of the convicted person not confessing to this specific sin?  What do they mean when they say “everyone will speak likewise in order to clear himself?”
  
  Mishnah 3
  
  Introduction
  Mishnah three deals with whether or not the person should wear clothing while being stoned.
  When he is about four cubits distant from the place of stoning, he is stripped of his clothing. A man is covered in front and a woman both in front and behind, according to Rabbi Judah. But the Sages say: “A man is to be stoned naked and a woman is not to be stoned naked. According to the Sages a man is stoned naked while a woman is stone clothed.  According to Maimonides explanation of this mishnah, the reason that the man is stoned naked is to hasten his death.  The clothing would present a barrier that would prolong his death and therefore prolong his suffering. Both the Sages and Rabbi Judah agree that a woman is stoned while clothed.  Evidently this is out of a sense of modesty.  Note, that even while executing a person, the Rabbis are concerned with issues of personal modesty. According to Rabbi Judah, this sense of modesty requires that even the man be clothed, although he need only be covered in the front, while the woman must be clothed from both sides
  
  Mishnah 4
  
  Introduction
  Mishnah four describes how the person was to be stoned.  The mishnah also discusses the hanging mentioned in Deuteronomy 21:22-23.  We should mention that we don’t really know exactly how this hanging was to be performed.  The JPS translation translates it as “impaling” but this is not the literal meaning of the word.  The purpose of such an action was to expose the body, and it was a common practice in the ancient and indeed also the modern world.  The Torah states that while this type of action may be done, the body may not be left overnight.  The Torah is concerned for the respect due to the human body and therefore it states that leaving a body hanging overnight is strictly forbidden.
  The place of stoning was twice a man's height. One of the witnesses pushed him by the hips, [so that] he was overturned on his heart. He was then turned on his back. If that caused his death, he had fulfilled [his duty]; but if not, the second witness took a stone and threw it on his chest. If he died thereby, he had done [his duty]; but if not, he [the criminal] was stoned by all Israel, for it is says: “The hand of the witnesses shall be first upon him to put him to death, and afterwards the hand of all the people” (Deut. 17:7).  According to the Rabbis, stoning was not carried out by throwing stones at the person until he dies, which would seem to be the normal way that one would understand stoning.  Rather the person is pushed off a two story platform and then stones are dropped on him.  The first witness is the one who pushes him off and if he dies then the execution is over and no further stoning is done. If the person is still alive then the second witness throws a stone on him.  If he dies the execution is over, but if he remains alive the rest of Israel throws stones at him.  This process is based on a biblical verse.  We should note two things.  First of all the mishnah is careful to stone the person only until he dies.  Once he dies, the Rabbis forbade further disfiguration of his body.  Second, the Torah requires the witnesses to take part in the stoning.  A witness must believe his testimony firmly enough to actually carry out the execution himself.  In some cases this might discourage false testimony.
  All who are stoned are [afterwards] hanged, according to Rabbi Eliezer. But the sages say:  “Only the blasphemer and the idolater are hanged.” A man is hanged with his face towards the spectators, but a woman with her face towards the gallows, according to Rabbi Eliezer. But the sages say: a man is hanged, but not a woman. Rabbi Eliezer said to them: “But did not Shimon ben Shetah hang women at ashkelon?” They said: “[On that occasion] he hanged eighty women, even though two must not be tried on the same day.  According to Rabbi Eliezer, the Torah commands that all executed people are hung after their execution.  However, the Sages say that this is done only to the blasphemer (of God) and to the idol worshipper. Rabbi Eliezer states that both men and women are to be hung, whereas the Sages say that only men are hung.  Note that even though Rabbi Eliezer believes that women are hung, he is still concerned with their modesty.  In order to prove his point that women are also hung, Rabbi Eliezer brings up the precedent of Shimon ben Shetach, an early Sage, who hung 80 women in Ashkelon.  (We don’t know why he hung them).  The Sages retort that this hanging was not done according to the law, for Jewish law forbids convicting even two people on one day.  According to the Sages the incident of Shimon ben Shetach was an unusual, one time affair, and does not set precedent for future cases.
  How is he hanged? The post is sunk into the ground with a [cross-] piece branching off [at the top] and he brings his hands together one over the other and hangs him up [thereby]. R. Jose said: the post is leaned against the wall, and he hangs him up the way butchers do. He is immediately let down. If he is left [hanging] over night, a negative command is thereby transgressed, for it says, “You shall not let his corpse remain all night upon the tree, but you must bury him the same day because a hanged body is a curse against god” (Deut. 21:23). As if to say why was he hanged?   because he cursed the name [of god]; and so the name of Heaven [God] is profaned.  Rabbi Yose and the Sages dispute how a person is to be hung.  Note that the hanging described by the mishnah is not done by the person’s neck but rather by their hands.  This is, of course, closer to what we would call crucifixion.  However, according to the Rabbis hanging is not a form of the death penalty but is to be performed after the execution has been carried out.  The body must be let down immediately.  Indeed according to other sources, one hand puts the body up and another lets it down.  The disgrace done to the body is indeed only momentary. The verse in Deuteronomy states that a hanged body is a disgrace to God.  Our mishnah understands that the verse comes to teach that people who see the body hanging will realize that it was because he cursed God, either by explicitly doing so or by worshipping idols, as we learned in section two.
  Questions for Further Thought:
   Why are the Rabbis so concerned about not disfiguring the body of the executed criminal?  What value lies behind their laws?
  Questions for Further Thought:
   Why are the Rabbis so concerned about not disfiguring the body of the executed criminal?  What value lies behind their laws?
  
  Mishnah 5
  
  Introduction
  Mishnah five deals with several subjects:  1)  God’s sorrow at seeing one of His children die; 2)  the commandment to bury all people on the day they die; 3)  the process of burying the executed criminal.
  R. Meir said: “When man suffers, what expression does the shechinah (God’s use?  “My head is too light (a euphemism for for me, my arm is too light  (a euphemism for  for me.” If god is so grieved over the blood of the wicked that is shed, how much more so over the blood of the righteous!  Throughout this chapter we have seen that although the Rabbis did allow executions to take place, after all the Torah talks in many places about executions, they were troubled by this punishment and went to lengths to make sure that no innocent man was ever executed.  Furthermore, according to the Rabbis, execution expiates the criminal of his sin, thereby allowing him a place in the world to come.  Our mishnah continues with this trend by stating God’s pain at the loss of even a criminal.  According to Rabbi Meir as the execution is being carried out, God exclaims that his head and arms are too heavy to bear.  We learn from this that if God mourns so greatly for the death of the wicked, all the more so will He mourn at the bloodshed of the righteous.
  And not only of this one [a criminal did the sages not to leave him overnight] but whosoever lets his dead lie over night transgresses a negative commandment. If he kept him over night for the sake of his honor, to procure for him a coffin or a shroud, he does not transgress.  We learned in mishnah four that one is not allowed to leave the body of the executed man hanging over night.  Rather the court must bury him that very day.  In mishnah five we learn that not only are criminals to be buried on the same day they die but every Jew should be buried on the same day that he dies.  Although most Jews do not still observe this custom, mostly due to people having to travel to make the funeral, and many funerals are delayed by a day or two, Jews in Jerusalem are still usually buried on the same day that they die.  Furthermore, Jewish law prohibits the use of chemicals to preserve the body, making a quick burial all the more imperative. The mishnah adds that if the delay was for the sake of the dead person, to arrange a proper burial, then no negative commandment is transgressed.
  And they did not bury him [the executed person] in his ancestral tomb, but two burial places were prepared by the court, one for those who were decapitated or strangled, and the other for those who were stoned or burned.  In this section and in the following mishnah we return to the subject of the executed criminal.  Jewish burial, and indeed many forms of ancient burial, was a two stage process.  First the person was buried and allowed to lie in the ground until his flesh deteriorated.  When this occurred they would collect the bones and put them into an ossuary with the bones from other deceased members of his family.  According to our mishnah the initial burial of the criminal was in a special grave reserved for those executed by the court.  There were two graves, one for those decapitated and strangled, and one for those burned and stoned.  (These are the four types of execution mentioned in the mishnah, as we will learn in the next chapter).
  Questions for Further Thought:
   What is the connection between section one and section two?  In other words, why does the mishnah discuss the need for a speedy burial of non-criminals here as opposed to mishnah four?
  Questions for Further Thought:
   What is the connection between section one and section two?  In other words, why does the mishnah discuss the need for a speedy burial of non-criminals here as opposed to mishnah four?
  
  Mishnah 6
  
  When the flesh was completely decomposed, the bones were gathered and buried in their proper place.The relatives then came and greeted the judges and witnesses, as if to say, we have no [ill feelings] against you, for you gave a true judgment.And they observed no mourning rites but grieved [for him], for grief is in the heart alone.Mishnah six discusses the process which occurs a year or so after the initial burial of the criminal.   At this time formal reconciliation is made between the family of the criminal and the court, thereby restoring proper order to society.When the flesh was decomposed the bones were allowed to be returned to their ancestral burial place.  This is the first step of reconciliation:  allowing the criminal’s bones to rejoin the bones of his family.  The mishnah then prescribes a procedure in which the relatives of the criminal were to greet the judges and witnesses, thereby tacitly admitting that the verdict had been correct.  This second process of reconciliation and admission to the authority of the court allows society to return to some sense of normalcy, after the severe disruption of an execution.  Finally, although the family may not observe proper mourning rites, which would involve elaborate eulogies and public rituals, inappropriate for a criminal, they were allowed to observe the private ritual of grief.  While the mishnah cannot allow the public ritual, it is sensitive to the private needs of the mourning family.  This too is a form of reconciliation, as if the court is saying to the family that although your relative was a criminal, the moral stain is not borne by his entire surviving family.  They are to return to regular members of society.
  
  
  
  
  
  Mishnah 1
  
  Four deaths have been entrusted to the court: stoning, burning, slaying [by the sword] and strangulation.R. Simeon says: “burning, stoning, strangulation and slaying.”That (the previous is the manner of stoning.The first mishnah of chapter seven lists the four types of execution that Jewish law prescribed.There are four types of death carried out (at least theoretically) according to Jewish law.  Our mishnah contains a dispute with regards to which type of execution is harsher than the others.  The Sages claim that stoning is the harshest, followed by burning, slaying and strangulation.  Rabbi Shimon disagrees.  He holds that burning is the harshest, and slaying the least harsh.The mishnah notes that the previous chapter described how stoning was to be carried out.  The following two mishnayoth will describe burning, slaying and strangulation.
  
  Mishnah 2
  
  The manner in which burning is executed is as follows: They would lower him into dung up to his armpits, then a hard cloth was placed within a soft one, wound round his neck, and the two loose ends pulled in opposite directions, forcing him to open his mouth. A wick was then lit, and thrown into his mouth, so that it descended into his body and burned his bowels.R. Judah says: “Should he have died at their hands [being strangled by the bandage before the wick was thrown into his mouth], they would not have fulfilled the requirements of execution by fire. Rather his mouth was forced open with pincers against his wish, the wick lit and thrown into his mouth, so that it descended into his body and burned his bowels.Rabbi Eleazar ben Zadok said: “It once happened that a priest's daughter committed adultery, whereupon bundles of sticks were placed around her and she was burnt. The Sages said to him:  “That was because the court at that time was not well learned in law.Our mishnah describes how execution by burning was to be carried out.  It might be helpful to begin with Rabbi Eleazar ben Zadok (section three), who testifies to having seen a priest’s daughter executed by being totally burnt (evidently alive).  This follows the seemingly simple requirement mentioned in Lev. 21:9, that a priest’s daughter who committed adultery should be burned. However, the Sages who disagree with him, and those who state their opinion in section one, believed that execution by burning was to be done by burning up the insides of the person.  They would open up his mouth and throw burning material inside and it would descend and burn him from the inside.  Rabbi Judah’s dispute with the Sages is with regards to the manner in which they would force open his mouth; he does not disagree with the Sages general understanding of how execution by burning was carried out.  Rabbi Judah is concerned lest in the process of opening his mouth they strangle him which is a different form of execution.It is worth discussing briefly the nature of the two different understandings of death by burning.  The Rabbis prescribe a form of burning that doesn’t seem to be the simple understanding of the Torah.  When the Torah states that someone is to be burned, it probably means an execution similar to that referred to by Rabbi Eleazar ben Zadok in section three.  Therefore the question needs to be asked:  why did the Rabbis insist that burning would take place by burning the inside and not the outside?  The answer is probably not that one form of death was more or less painful than the other.  They both sound quite painful.  The best answer that is borne out by many other sources, is that the Rabbis did not want to sanction an execution in which the outer body was disfigured.  While they believed in the death penalty (again, at least theoretically) they wanted to execute the criminal while doing as little physical, external damage to the body as possible.  The body, after all, is a gift from God, and while the person may deserve death according to the law, damaging the body serves no purpose.  This is to be contrasted to other cultures that have existed until this very day, who considered the public disfiguring of the body of the criminal to be desirable, either as an example to the rest of society, or as a means to take vengeance even on the corpse.  The Rabbis took a strong stand against such practices, one that we will see in several places.  Indeed we have already seen this attitude in the previous chapter, when it stated that the hanged body was to be taken down immediately.  Although the criminal deserved to die, mutilating his body was indeed, according to Jewish law, an affront to God.
  
  Mishnah 3
  
  Introduction
  Mishnah three describes the final two forms of execution:  slaying by the sword and strangulation.
  Slaying by the sword was performed thus: they would cut off his head by the sword, as is done by the civil authorities. R. Judah says: “This is a disgrace!  Rather his head was laid on a block and severed with an axe. They said to him: “No death is more disgraceful than this.”  According to the Sages execution by sword was done by decapitating the condemned, as is the practice amongst the non-Jewish authorities.  Rabbi Judah says that this is a disgrace.  Rather they should lay his head on a block of wood and chop it off with an axe.  The Sages reply to Rabbi Judah that this is even more disgraceful.  Although it is hard for us to understand why one form of decapitation is more disgraceful than the others, the important issue in this mishnah is that both sides want to prevent a disgraceful execution.  As we have already stated, in the ancient world it was common to search for the most disgraceful execution possible.  The Rabbis took a totally opposite approach.  Even while executing the man the court must look for the least disgraceful way of ending his life.
  Strangulation was performed thus: the condemned man was lowered into dung up to his armpits, then a hard cloth was placed within a soft one, wound round his neck, and the two ends pulled in opposite directions until he was dead.  Strangulation was done by tying a rope around the condemned man’s neck and pulling it from both sides until he dies. Again, we see in this mishnah that the Sages tried as much as possible to prevent disfiguration to the body.  This is accomplished in our mishnah by putting the rough rope inside a soft rope.  Although in either way the condemned will die, the soft rope will leave less damage on the body.  It is also important to note that while all of the other forms of execution are mentioned specifically in the Torah, strangulation is not.  It is probably a new form of execution, created by the Rabbis, specifically with the intent of causing as little physical damage to the body as possible.
  Questions for Further Thought:
   What is the basis for the dispute between Rabbi Judah and the Sages?
  Questions for Further Thought:
   What is the basis for the dispute between Rabbi Judah and the Sages?
  
  Mishnah 4
  
  Introduction
  Mishnah four lists those crimes for which one is stoned and begins to explain them.
  This mishnah lists all of those who are executed by stoning and then begins to explain some of the details.  Most of these crimes are specifically listed in the Torah as being punishable by stoning.  Some are learned through an analogy with other crimes.  We will mention the verses for each crime.(1) one who has sexual relations with his mother:  Leviticus 18:7, 20:11.  (2) with his father's wife:  Leviticus 18:8, 20:11.  (3) with his daughter -in-law:  Leviticus 20:12.  (4) with a male: Leviticus 20:13.  (5) with a beast:  Leviticus 20:15.  (6) a woman who commits bestiality with a beast:  Leviticus 20:16. (7) a blasphemer:  Leviticus 24:15-16.  (8) an idolater:  Deuteronomy 17:2-5.  (9) one who gives of his seed to molech:  Leviticus 20:2.  (10) a necromancer or a wizard:  Leviticus 20:27.  (11) one who desecrates the Sabbath:  Number 15:35.  (12) he who curses his father or mother:  Exodus 21:17, Leviticus 20:9.  (13) he who commits adultery with a betrothed woman:  Deuteronomy 22:23-24.  (14) one who incites [individuals to idolatry:  Deuteronomy 13:7-11.  (15) one who seduces [a whole town to idolatry]: Deuteronomy 13:7-11.  (16)  a sorcerer:  Exodus 22:17, Deuteronomy 18:10.  (17) a wayward and rebellious son:  Deuteronomy 21:18-21. The rest of chapter seven will deal with the first 16 of these issues.
  He who has sexual relations with his mother incurs a penalty in respect of her both as his mother and as his father's wife. R. Judah says:  “He is liable in respect of her as his mother only.”  One who has relations with his mother incurs two crimes, one for having relations with his mother and a separate crime for having relations with his father’s wife.  Of course there is no practical difference with regards to how many crimes he has committed if he is to incur the death penalty, since you can only kill a man once.  There is a difference though if the relations were accidental (such as he didn’t know that she was his mother).  In such a case he must bring a sacrifice to make atonement.  Our mishnah teaches that he will have to bring two sacrifices. Rabbi Judah holds that he is obligated for only one sacrifice.
  He who has sexual relations with his father's wife incurs a penalty in respect of her both as his father's wife, and as a married woman, both during his father's lifetime and after his death, whether she was widowed from betrothal or from marriage.  One who has relations with his father’s wife (not his mother) is obligated for having relations with a married woman and with his father’s wife.  He is obligated no matter if his father is alive or has already died and she is now his widow.  Similarly, he is obligated even if she was only betrothed to his father, but not fully married.
  He who has sexual relations with his daughter-in-law incurs a penalty in respect of her both as his daughter-in-law and as a married woman, both during his son's lifetime and after his death, whether she was widowed from betrothal or from marriage.  All of the same laws with regards to the prohibition of having relations with one’s father’s wife are true with regards to one’s son’s wife.
  He who has sexual relations with a male or a beast, and a woman that commits bestiality: if the man has sinned, how has the animal sinned? But because the human was enticed to sin by the animal, therefore scripture ordered that it should be stoned. Another reason is that the animal should not pass through the market, and people say, this is the animal on account of which so and so was stoned.  This section deals with bestiality.  According to Leviticus 20:15-16, an animal who has had sexual relations with a man or woman is to be killed.  Our mishnah asks why should the animal be killed.  After all it certainly had no control over its actions.  The mishnah supplies two answers:  1)  since it caused a man or woman to sin.  Perhaps we are concerned that another person might also sin with this animal.  2)  So people will not be reminded of the crime every time they see the animal.
  
  Mishnah 5
  
  The blasphemer is punished only if he utters [the divine] name.Rabbi Joshua b. Korcha said: “The whole day [of the trial] the witnesses are examined by means of a substitute for the divine name:, ‘may Yose smite Yose.”When the trial was finished, the accused was not executed on this evidence, but all persons were removed [from court], and the chief witness was told, ‘State literally what you heard.’Thereupon he did so, [using the divine name].The judges then arose and tore their garments, which were not to be resewn.The second witness stated:  “I too have heard thus” [but not uttering the divine name], and the third says: “I too heard thus.”Mishnah five deals with the blasphemer and the special circumstances of his trial.With regards to the blasphemer the Torah states (Lev. 24:15):  “Anyone who blasphemes his God shall bear his guilt.  If he also pronounces the name of the Lord, he shall be put to death.”  From these verses the Rabbis learned that the blasphemer was obligated for the death penalty only if he used God’s four letter name.The problem with putting the blasphemer on trial is that when the witnesses testify and repeat what they heard, they too will be blaspheming God’s name.  Although they certainly would not receive the death penalty for doing so, it was nevertheless seen to be unacceptable for even a witness to repeat what he heard, especially in a public trial.  Therefore, during the court’s deliberation they used a code word, “may Yose smite Yose”.  However, in order to complete the trial the witnesses needed to state what they heard explicitly at least one time.  Therefore, at the end of the trial they would remove everyone from the court and only the witnesses and the judges would remain.  They would then ask the eldest witness to say explicitly what he heard.  So painful was it for the judges to hear God’s name being blasphemed that they would tear their clothes and not repair them.  This was a typical sign of mourning.  The remaining witnesses would not need to say exactly what they heard, thereby repeating the blasphemy.  Rather they would merely say that they heard what the first person heard.
  
  Mishnah 6
  
  He who engages in idol-worship [is executed].  This includes the one whoserves it, sacrifices, offers incense, makes libations, bows to it, accepts it as a god, or says to it, “You are my god.”But he who embraces, kisses it, sweeps or sprinkles the ground before it, washes it, anoints it, clothes it, or puts shoes on it, he transgresses a negative commandment [but is not executed].He who vows or swears by its name, violates a negative commandment.He who uncovers himself before Baal-Peor  [is guilty and is to be stoned for] this is how it is worshipped.He who casts a stone on Merculis [is guilty and is to be stoned for] this is how it is worshipped.Mishnah six deals with which forms of idol worship will cause a Jew to incur the death penalty.Our mishnah describes what types of idolatrous activities are punished by death and what types are forbidden but not punishable by death.  Basically we can summarize that activities that are performed solely in worship of the idol, such as bowing to it, sacrificing to it, or specifically stating that the idol is a god, are punished by death.  However, ancillary actions that are not done with the purpose of worship are forbidden but not punishable by death.The final two clauses of our mishnah mention two idols who were worshipped by strange types of actions.  Baal-Peor is worshipped by the idolater’s exposing himself.  Merculis (Mercury) is worshipped by throwing stones at it.  Since these are considered to be worship, the one who performs them is obligated for the death penalty.
  
  Mishnah 7
  
  Introduction
  The first half of mishnah seven deals with one who gives of his seed to Molech.  The second half of mishnah seven deals with the “Ba’al Ob” and the “Yidde’oni”.  We will explain all of these terms below.
  He who gives of his seed to Molech is not liable unless he delivers it to Molech and causes it to pass through the fire. If he gave it to Molech but did not cause it to pass through the fire, or he caused it to pass through fire but did not give it to Molech, he incurs no penalty, unless he does both.  “Molech” was the name given by a god worshipped by some of Israel’s neighbors.  It is mentioned in Leviticus 20:2, where it specifically states that one who gives of his seed to Molech shall be stoned.  It is also mentioned in Leviticus 18:21 and II Kings 23:10.  According to the Rabbis “giving one’s seed to Molech” involved giving one’s child to the priests of Molech and their passing him from one side of a fire to another.  The child was not consumed by the fire.  (Although some commentators hold that this was a form of child sacrifice.  For an interesting article on Biblical scholarship with regards to the cult of Molech, see the JPS Commentary on Leviticus).  Our mishnah teaches that in order for the father to be obligated for the death penalty he must both give the child to the priests of Molech and cause the child to be passed through the fire.  If he does only one of these he is not to be stoned.
  A Ba'al Ob  is the pithom  who speaks from his armpit. The Yidde'oni is one who speaks from his mouth. These two are stoned; while he who inquires of them transgresses a formal prohibition.  Leviticus 19:31 specifically warns that Israelites are not to make inquiry of the “Ovoth” or the “Yidde’onim”.  These were different types of sorcerers or oracles who would conjure up spirits in order to tell the future.  According to our mishnah a “Ba’al Ob”, or Master of the Ob” was a “pithom”, which in Greek means a conjurer.  According to Rashi he would place a skull underneath his armpit and use it to predict the future.  A “Yidde’oni” would also conjure up spirits but he would speak from his mouth.  If an Israelite were to act as a conjurer of this sort he would be obligated for stoning. If an Israelite were to inquire of a “Ba’al Ob” or “Yidde’oni” he would transgress a negative commandment, but he would not be obligated for the death penalty.
  
  Mishnah 8
  
  Introduction
  Mishnah eight deals with one who violates the Sabbath and one who curses his parents.
  He who desecrates the Sabbath [is stoned], providing that it is an offence punished by “kareth” if deliberate, and by a sin-offering if unwitting.  According to Numbers 15:35, one who breaks the Sabbath is punished by being stoned.  However, we learn elsewhere that he is stoned only if he is warned prior to the transgression that if he violates the Sabbath in such a manner he will be stoned.  Our mishnah teaches that this is true provided that his violation was one which is punished by “kareth” (a death penalty meted out by God) if not warned (but nevertheless committed with intent to break the Sabbath).  He also must commit a transgression for which he is obligated to bring a sin-offering if he did it unwittingly (for instance he didn’t know that today was the Sabbath or that this type of work is prohibited).  The seventh chapter of Tractate Shabbat lists which types of work one is prohibited from doing on the Sabbath.  One who is warned not to do one of these types of work and does so anyway is to be stoned.  There are other types of work which are forbidden to do on the Sabbath but are not punished by stoning.
  One who curses His father or his mother is not punished unless he curses them by the divine name. If he cursed them by a nickname,  Rabbi Meir held him liable, but the Sages ruled that he is exempt.  According to Leviticus 20:9 and Exodus 21:17 one who curses his parents is liable for the death penalty.  Our mishnah teaches that he is liable only if he curses them using God’s explicit name (which we no longer know).  Although Rabbi Meir holds that he is obligated even if he uses a nickname for God, the Sages disagree.
  
  Mishnah 9
  
  He who has sexual relations with a betrothed young woman is not punished until she is a young woman, a virgin, betrothed, and in her father's house.If two men had sexual relations with her, the first is stoned, but the second is strangled.Mishnah nine deals with a man who has relations with a betrothed virgin.Deuteronomy 22:23-24 states:  “In the case of a virgin who is betrothed to a man if a man comes upon her in town and lies with her, you shall take the two of them out to the gate of that town and stone them.”  A man who has sexual relations with a betrothed woman is an adulterer, as is she, and they are both punishable by death.  However, unlike a regular adulterer who is punished by strangulation, one who has relations with a betrothed woman is punished with a more serious form of the death penalty, stoning.  Our mishnah teaches that in order for the two to be punished by stoning she must be betrothed and not married.  She must be a virgin, and she must be a young woman, usually defined as being from the age of 12-12 ½.   Older or younger than that and he will only be punished by strangulation. She also must still be residing in her father’s house.  If she has already moved to her husband’s house she is considered married and adultery is then punished by strangulation.If two men commit adultery with her the first is punished by being stoned and the second is punished by strangulation, since by the time he had relations with her she was no longer a virgin.
  
  Mishnah 10
  
  Introduction
  Mishnah ten deals with those who incite individuals or whole towns to commit idolatry.
  One who incites [individuals to idolatry] -- this refers to an ordinary person who incites an individual who said, “There is an idol in such and such a place; it eats thus, it drinks thus, it does good [to those who worship it] and harm [to those who do not].”  Deuteronomy 13:7-11 discusses an Israelite who attempts to incite his fellow Israelite to worship idols.  According to our mishnah this is a regular individual (as opposed to a prophet) who attempts to incite another individual (as opposed to the entire town) to commit idolatry, by telling the other person about an idol that he intends to worship.
  For all who are liable for the death penalty according to the Torah no witnesses are hidden to entrap them, excepting for this one. If he said [these things] to two, they themselves are witnesses against him, and he is brought to court and stoned. But if he said [these things] to one, he should reply, “I have friends who wish to do so likewise [come and propose it to them too].” But if he was cunning and declined to speak before them, witnesses are hidden behind a partition, while he [who was incited] says to him, make your proposal to me now in private. When the inciter says to him (repeats to him what he had already, the other replies, “How can we abandon our God in heaven to go and serve wood and stones?” Should he retract, it is well. But if he answers, “It is our duty [to worship idols], and is seemly for us”, then the witnesses stationed behind the partition take him to court, and have him stoned.  Jewish law requires that all crimes, and certainly capital crimes, be witnessed by two people.  However, due to the subversive nature of idol worship, the Rabbis allowed entrapping of one who was trying to incite others to worship idols.  Such a form of entrapment was forbidden in all other cases.  The reason that this was allowed in this case was to prevent one from inciting many individuals privately, thereby circumventing any possible punishment by the court.  The mishnah now explains how this works. If he had incited two people directly, the two of them may bring him to court and he can be tried based on their testimony.  If he incited one person, that person should first attempt to get the inciter to say the same thing to other people, and if he does they may bring him to court and testify against him.  Should the inciter be clever and not repeat the same words in front of more than one person, the person who has already heard what the inciter said may hide witnesses behind a partition and encourage the inciter to repeat his words.  Interestingly, the person who is being incited should even at this late stage try to get the inciter to recant.  Jewish law is more interested in having the person recant and return to being part of the Jewish people than having him stoned.  If he does not, however, recant, these witnesses may testify against him in a court of law, and if found guilty he will be stoned.
  He who incites [individuals to idolatry is one who] is one who says, “I will worship it”, or, “I will go and worship”, or, “let us go and worship”; or, “I will sacrifice [to it]”, “I will go and sacrifice”, “let us go and sacrifice”; “I will burn incense, “I will go and burn incense”; “let us go and burn incense”; or “I will make libations to it”, “I will go and make libations to it”, “let us go and make libations”; “I will prostrate myself before it”, “I will go and prostrate myself”, “let us go and prostrate ourselves”.  This section lists all of the possible statements that are considered incitement.  Basically it doesn’t matter if he states that he is going to do the idol worship or suggests that other do it with him, nor does it matter what type of worship it may be worshipping, sacrificing, bringing incense, making libations or bowing down, in any case he is considered an inciter and is liable for the death penalty of stoning.  Note the similarity between this list and the list of forbidden types of worship in mishnah six.
  One who seduces [a whole town to idolatry] is one who says, “Let us go and serve idols”.  In Deuteronomy 13:13-19 a different type of inciter is discussed, one who incites an entire city to worship idols.  The mishnah states that to be this type of inciter one must suggest in public that they all go and worship idols.  If he had used singular language than his incitement does not fall into this category.  We will discuss this case more when we learn chapter ten.
  
  Mishnah 11
  
  Introduction
  Mishnah eleven deals with different forms of sorcery.
  A sorcerer, if he actually performs magic, is liable [to death], but not if he merely creates illusions. Rabbi Akiva says in Rabbi Joshua's name: “If two are gathering cucumbers [by magic] one may be punished and the other exempt:  he who really gathers them is punished: while he who produces an illusion is exempt.” When the mishnah stated that a sorcerer is liable to be stoned, it meant one who actually performs magic, but not one who creates illusions.  [Therefore, modern magicians who use illusions are not obligated for the death penalty].  Rabbi Akiva in the name of Rabbi Joshua illustrates this principle by mentioning a form of magic that must have been at least somewhat known in the time of the mishnah, something like pulling a rabbit out of a hat in our days.
  
  
  
  
  
  Mishnah 1
  
  Introduction
  Chapter eight deals almost exclusively with the wayward and rebellious son mentioned in Deut. 21:18-21.  According to this famous passage in the Torah, if parents have a son who does not obey their words they may take him to the elders of the city, pronounce him to be wayward and rebellious and the child will be punished through stoning.  Much can be said about this passage and indeed it sounds quite harsh to our modern ears.  The Rabbis too seemed to be troubled by the passage and dealt with it in three different ways:  1)  there is one strain of thought in Rabbinic sources which says that this law was never fulfilled.  In other words, there never was a rebellious and wayward son who was stoned.  2)  Although we may not understand the passage it is God’s word and we have no right to question it.  3)  The rebellious son is not punished because of his prior actions but rather to prevent him from becoming a worse menace to society.
  This mishnah deals with the age that a boy must be in order for him to be stoned as a wayward and rebellious son.  Section a states that he must have already have reached the beginning stages of puberty but not have reached adulthood.  Through a midrash on the opening verse, “If a man has a son” the Rabbis conclude that the passage in Deuteronomy relates to a son and not a daughter, to someone who still acts as the son of his father but not to an adult who is already beyond the strict authority of his parents.
  Section b states that the minor is exempt, since he is not obligated for commandments.  Taken in its totality the mishnah severely limits the age at which a child can be punished as a wayward and rebellious son.  We are probably talking about a time period of about six months.
  
  Mishnah 2
  
  Introduction
  Mishnah two defines the actions that a son must take in order to be defined as “wayward and rebellious”.
  This mishnah deals with what actions are required to make a child punishable as a wayward and rebellious son.
  When does he become liable [to be stoned]? Once he has eaten a tartemar of meat and drunk half a log of wine. Rabbi Yose said: “A maneh of meat and a log of wine.  The child must eat a minimum amount of meat and drink a minimum amount of wine.  This is proven at the end of the mishnah in sections 2g and 2gi.  The verse from Deuteronomy states that the parents must accuse their child of being a glutton or a drunkard.  The verses from Deuteronomy do not explain what these two terms mean.  In the book of Proverbs it is stated that a glutton refers to one who eats too much meat and a drunkard is one who drinks too much wine.  From here the mishnah concludes that the child must have drunk wine and eaten meat in order for him to be wayward and rebellious.  The Rabbis disagree with regards to how much wine and meat he drank.
  If he ate it in a company [celebrating] a religious act; or at a gathering for the purpose of intercalating the month; if he ate the second tithe in Jerusalem; if he ate the carrion or terefoth (meat that was not slaughtered in a kosher, abominable and creeping things, or untithed produce, or the first tithe from which terumah had not been separated,  or unredeemed second tithe,  or unredeemed sacred food; if his eating involved a religious act or a transgression; if he ate any food but did not eat meat or drank any drink but did not drink wine, he does not become a ‘stubborn and rebellious son, unless he eats meat and drinks wine, for it is written, “This our son is stubborn and rebellious, he will not obey our voice;] he is a glutton and a drunkard” (Deut. 21:20). Although there is no clear proof for this, there is at least a hint, as it is says, “Do not be among wine drinkers, among gluttonous meat eaters of flesh (Proverbs 23:20).  This section lists all sorts of circumstances of eating and drinking that would not cause him to be a wayward and rebellious son.  These circumstances can be divided into two types:  1)  religious celebrations; 2)  consumption of forbidden food.  If he ate at a religious celebration he cannot be punished since it is praiseworthy to eat much wine and meat at such affairs.  These types of affairs are listed in the first three clauses of the section.  Second tithe, mentioned in section b, is consumed only in Jerusalem, and therefore by eating it there he is fulfilling a religious duty.  Clauses c and d list several foods that are forbidden to be consumed, whether they are agricultural products who have not had the agricultural offerings separated from them (untithed produce, etc.), meat that was not slaughtered properly (carrion or terefoth) or animals that are forbidden to eat (abominable and creeping things).  The Talmud explains that eating or drinking these things do not make one a wayward and rebellious son because the parents state, “He does not listen to our voice”, whereas one who eats these things doesn’t listen even to God’s voice.  A wayward and rebellious son is only defiant to his parents but not to his entire religious obligation. Finally the mishnah reminds us that he must have eaten meat and drunk wine in order to become a wayward and rebellious son.  Eating other food gluttonously and getting drunk off other beverages will not make a child liable to be punished as a wayward and rebellious son.
  Questions for Further Thought:
   Can you detect a common denominator in the Rabbis understanding of the passage of the wayward and rebellious son?  Of the strategies (listed in the introduction to yesterday’s mishnah) that the Rabbis used to deal with this difficult portion of the Torah, which one is employed in this mishnah and in the previous mishnah?
  Questions for Further Thought:
   Can you detect a common denominator in the Rabbis understanding of the passage of the wayward and rebellious son?  Of the strategies (listed in the introduction to yesterday’s mishnah) that the Rabbis used to deal with this difficult portion of the Torah, which one is employed in this mishnah and in the previous mishnah?
  
  Mishnah 3
  
  Introduction
  Mishnah three contains further restrictions with regards to the “wayward and rebellious son”.
  If he stole from his father and ate it on his father’s property, or of strangers and ate it on the property of the strangers, or of strangers and ate on his father’s property, he does not become a “wayward and rebellious son,”   until he steals from his father and eats on other’s property. Rabbi Yose bar Yehudah said: “Until he steals from his father and mother.” According to our mishnah in order for a son to become a “wayward and rebellious son” he must steal from his father and consume the stolen food on other people’s property.  This is because stealing from his father is easy due to his easy access to his father’s property.  Eating the stolen food on other people’s property is also easy, since other people will not know that that which he is eating was stolen.  Any other combination of stealing and eating will not make him a “wayward and rebellious son”, since one element will not be so easy.  In other words, in order to be a “wayward and rebellious son” he must violate the norms of society in a way that will be easy and therefore encourage him to continuously do so.  A riskier action is less likely to be repeated and is therefore more lightly punished. According to Rabbi Judah he must steal from both his father and mother. This “egalitarian” approach is probably based on the fact that the verses in Deuteronomy say that both parents bring the child to his punishment, as we will learn in greater depth in the next mishnah.  If both parents bring the child to be punished, the crimes must have been directed at both parents as well.
  Questions for Further Thought:
   Of the strategies for dealing with understanding the laws of the “wayward and rebellious son” that we discussed in the introduction to this chapter, which are employed in this mishnah?
  Questions for Further Thought:
   Of the strategies for dealing with understanding the laws of the “wayward and rebellious son” that we discussed in the introduction to this chapter, which are employed in this mishnah?
  
  Mishnah 4
  
  Introduction
  Mishnah four contains further restrictions with regards to the “wayward and rebellious son”.
  If his father wants [to have him punished], but not his mother; or his father does not want [to have him punished] but his mother does, he is not treated as a ‘wayward a rebellious son’, unless they both desire it. Rabbi Judah said:  “If his mother is not fit for his father, he does not become a ‘wayward and rebellious son”.  Deut. 21:19 states, “His father and mother shall take hold of him”.  On this one verse the Rabbis made a number of restrictions on the applicability of the case of the wayward and rebellious son.  First of all, a most basic understanding of this verse states that both the father and mother must agree to the punishment.  This is to prevent one parent from punishing the child without the consent of the other parent. Rabbi Judah learns something slightly more complicated from this verse.  He states that if the woman was not “fit” for her husband, the child cannot be punished.  One explanation for the word “fit” is that the marriage was a forbidden marriage (for instance a Kohen and a divorcee).  A different explanation is that the she was not equal to him in height and appearance.  This requirement would then make it almost impossible for a child to become a wayward and rebellious son.  After all, how many parents look exactly alike.
  If one of them [his father or his mother] had a hand cut off, or was lame, mute, blind or deaf, he cannot become a “wayward and rebellious son”, because it says “his father and mother shall take hold of him” (Deut. 21:19)   not those with a hand cut off; “and bring him out”, not lame parents; “and they shall say”, and not mute parents; “this our son”, and not blind parents; “he will not obey our voice” (Deut. 21:20), and not deaf parents.  This section contains a midrash which excludes children of certain types of parents from being able to be punished as wayward and rebellious.  The aforementioned verse states that the parents shall “take hold of him”:  this means that a parent who has only one hand cannot fulfill the procedure and therefore his/her child cannot be punished as a wayward and rebellious son.  The verse states that the parents must “take him out”:  therefore parents with physical disabilities (probably unable to walk) cannot fulfill the procedure.  They must make a statement:  therefore the parents cannot be mute.  They must point him out when they say, “This son of ours”:  therefore they cannot be blind.  Finally, they must both hear each other’s voice so that they know that he disobeys both of them:  therefore they cannot be deaf.
  He is warned in the presence of three and beaten. If he transgresses again after this, he is tried by a court of twenty three. He cannot be sentenced to stoning unless the first three are present, because it says, “this our son” (Deut. 21:20), [implying], this one who was whipped in your presence.  The Torah states that the wayward and rebellious son had already been disciplined before he is brought to the elders to be stoned.  Our mishnah understands this to be a formal beating administered by the court.  The idea is to pressure the child to change before it is too late.  While disciplining the son by beating him only requires a court of three, executing him requires a court of twenty three, as do all executions.  The three in front of whom he was beaten must be present at the subsequent trial and execution.  This is learned from the parents’ statement, “This is our son”.  The word “this” implies that this same son was already beaten in front of the same judges.
  If he [the rebellious son] fled before his trial was completed, and then his pubic hair grew in fully, he is free. But if he fled after his trial was completed, and then his pubic hair grew in fully, he remains liable.  We learned in the first mishnah of the chapter that a child cannot be punished as a wayward and rebellious son has reached full puberty.  Our mishnah teaches that if the accused child runs away before the trial is over, and by the time he returns he has reached full puberty, he can no longer be punished.  However, if the trial is already over and the son was convicted, he can be punished even if he runs away and then achieves full puberty before being brought back.  Since the trial is already over and we are only waiting for the punishment to be meted out, it does not matter that he is now too old to be tried as a wayward and rebellious son.
  Questions for Further Thought:
   Of the strategies for dealing with understanding the laws of the “wayward and rebellious son” that we discussed in the introduction to this chapter, which is employed in this mishnah?
  Questions for Further Thought:
   Of the strategies for dealing with understanding the laws of the “wayward and rebellious son” that we discussed in the introduction to this chapter, which is employed in this mishnah?
  
  Mishnah 5
  
  Introduction
  Mishnah five discusses an important Rabbinic conception of the punishment of the wayward and rebellious son, namely that he is not punished on account of the sins that he has already committed but on account of the sins that he will commit in the future.
  A “wayward and rebellious son” is judged on account of his outcome: let him die innocent and let him not die guilty.  One of the difficulties in comprehending the severe punishment meted out to the wayward and rebellious son is that it does not seem to fit the crime.  The Talmud itself asks, just because he ate too much meat and drank too much wine should this child be stoned.  Our mishnah provides one potential answer:  the son is not punished for that which he has already done but for that which he will do in the future.  The punishment prevents a minor criminal from becoming an even worse criminal.  The mishnah teaches that executing the potential criminal is not only good for society, but is a benefit to the criminal as well, for he will die innocent and not guilty.  Behind this idea lies a concept of reward and punishment in the world to come.  Since the wayward and rebellious son is punished before he can be guilty of a serious crime, he will not receive further punishment in the world to come.
  For the death of the wicked benefits themselves and the world; [and the death] of the righteous, injures themselves and the world d. Wine and sleep of the wicked benefit themselves and the world; of the righteous, injure themselves and the world The scattering of the wicked benefits themselves and the world; of the righteous, injures themselves and the world. The assembling of the wicked injures themselves and the world; of the righteous, benefits themselves and the world. The tranquillity of the wicked injures themselves and the world; of the righteous, benefits themselves and the world.  The mishnah then continues with a discussion of things that are good for the wicked and for the whole world, and bad for the righteous and for the world.  Death is good for the wicked, for they will die before they commit more crimes, and for obvious reasons it is good for the world.  Death of the righteous prevents them from performing more good deeds and, again for obvious reasons, it is bad for the world.  Wine and sleep will prevent the wicked from committing more sins and is therefore good for them and for the world, but bad for the righteous for it prevents them from performing good deeds.  The scattering of the wicked prevents them collaboration in sinning whereas the scattering of the righteous prevents their collaboration in good deeds.  The ingathering of the wicked allows them to commit more and greater sins, whereas the ingathering of the righteous allows them to perform more good deeds.  Finally, tranquility affords the wicked the freedom to commit more crime, whereas it provides the righteous the freedom to do more good.
  
  Mishnah 6
  
  Introduction
  Mishnah six discusses the permission that one has to kill a thief who has tunneled into one’s home.
  [The thief] who burrows his way in [to someone’s home] is judged on account of his outcome.  Exodus 22:1-2 teaches that if a householder kills a thief who has burrowed his way into his house, the householder is not guilty of murder.  Although execution is not the usual punishment for a thief, since the householder was taken by surprise and did not know the intention of the illegal intruder, he is not held liable for having killed him.  Our mishnah understands that this preemptive killing of the intruder is to prevent him from committing more sins, specifically the murder of the householder.
  If he burrowed his way in and broke a jug, should there be blood-guiltiness for him,  he must pay [for the jug], but if there is no blood-guiltiness for him, he is not liable.  The Torah also teaches that if the thief burrowed in during the day the householder is not allowed to kill him (unless it is in self-defense).  If the householder does kill him he will be accounted guilty.  Our mishnah teaches that if the thief broke a jug while burrowing he is liable for damages only in a case where the householder was not allowed to kill him.  If, however, the householder was allowed to kill him, i.e. at night, since the thief can be executed he is not liable for monetary damages.  This is based on a common principle in Jewish law that if on account of one act one becomes liable for two punishments, he is punished by the greater of the two punishments, in this case death (see Bava Kamma 3:10).
  Questions for Further Thought:
   Why do the Rabbis understand the killing of the “tunneling thief” as preventing him from committing worse crimes, as opposed to self-defense?
  Questions for Further Thought:
   Why do the Rabbis understand the killing of the “tunneling thief” as preventing him from committing worse crimes, as opposed to self-defense?
  
  Mishnah 7
  
  The following can be saved [from sinning] even at the cost of their lives: he who pursues after his neighbor to slay him, [or] after a male [to rape him], [or] after a betrothed maiden [to rape her].But he who pursues after an animal [to have relations with it], or one who would violate the Sabbath, or commit idolatry, must not be saved [from sinning] at the cost of his life.The final mishnah of chapter eight continues to discuss this concept of “preventive punishment” and its limited applicability in Jewish law.The principle of preventive punishment is a dangerous principle for even a court cannot tell with certainty if someone will surely commit a crime in the future. The Rabbis recognized the danger of this principle and therefore limited its applicability.  Section one teaches that one may be killed preemptively only if he was about to commit a capital crime that would violate another person.  Section two lists cases in which a person may be killed preemptively, even though he is about to commit a capital crime.  Since none of these sins are crimes against other people, the only way the criminal can be executed for having committed one of them is by a proper trial done in front of a court of twenty three.
  
  
  
  
  
  Mishnah 1
  
  Introduction
  The first half of mishnah one discusses those who are executed by burning, while the second half discusses those executed by being decapitated.
  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.
  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.
  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.
  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.
  Questions for Further Thought:
   Section four: Why does the mishnah mention this strange case?  What might it teach us in general about other cases?
  Questions for Further Thought:
   Section four: Why does the mishnah mention this strange case?  What might it teach us in general about other cases?
  
  Mishnah 2
  
  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.
  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?
  Questions for Further Thought:
   How are the scenarios in 2d and 2e different from those in the previous clauses?
  
  Mishnah 3
  
  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..
  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.]
  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.
  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?
  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?
  
  Mishnah 4
  
  Introduction
  Mishnah four discusses a person who through one act incurs two different types of death penalty.
  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.
  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.
  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.
  
  Mishnah 5
  
  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.
  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.
  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.
  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?
  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?
  
  Mishnah 6
  
  Introduction Mishnah six continues to list what I have termed “extra-halakhic” punishments.
  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.
  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.
  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.
  Questions for Further Thought:
   What is the difference between section three and the previous two sections of this mishnah and the previous mishnah?
  Questions for Further Thought:
   What is the difference between section three and the previous two sections of this mishnah and the previous mishnah?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  Chapter ten of Sanhedrin is one of the most theologically challenging chapters in the entire Mishnah.  It lists those people who have a part in the world to come (olam haba) and those who don’t.  There are two main opinions amongst Jewish authorities with regards to the definition of olam haba referred to in our chapter.  There are those who say that the mishnah refers to a future time when God will resurrect the dead (tehiyat hametim) which will happen only after the coming of the Messiah (yemot hamashiach).  Others say that the Mishnah refers to what is called to in modern language “heaven”.  This final opinion is the opinion of Maimonides (the Rambam) who wrote a lengthy treatise on our chapter in which he included his thirteen principles of faith, which were later summarized in the “Yigdal” a poem commonly sung in synagogues.  We do not have the space to go into detail with regards to the differing Jewish opinions on these concepts (olam haba, tehiyat hametim and yemot hamashiach).  Nevertheless it is worthy to mention that the Rambam categorizes three different types of approaches to “agaddah” or Rabbinic texts of legendary nature, in which he includes this entire chapter.  There are those who take each and every word literally and believe them to be true.  There are others who assume that the Rabbis meant their words to be taken literally and since these thoughts contradict provable nature, they assume the Rabbis to be foolish.  Finally, there are those who understand the legends of the Rabbis to be allegories, human language meant to convey divine truth.  The Rabbis were confined to the limited language with which all human beings communicate and therefore could not fully describe the infinite aspects of the divine.
  Finally, while our chapter is theologically dogmatic, it is worthwhile noting that the Talmudic commentary on this chapter, contains, as usual, differing opinions with regards to these matters.  With some notable exceptions, Jewish thinkers have tended not to be theologically dogmatic, allowing Jews to preserve a variety of opinions and philosophies with regards to our understanding of God and creation.  When approaching this chapter we should therefore understand it to contain one opinion with regards to these matters and not the only authoritative opinion that exists.
  All Israel  have a portion in the world to come, for it says, “Your people, all of them righteous, shall possess the land for ever; They are the shoot that I planted, my handiwork in which I glory” (Isaiah 60:2.  All Jews have a portion in the world to come, even the executed criminals discussed in the previous chapters of Sanhedrin. Our mishnah proves this from the verse from Isaiah which states “all of them (Israel) are righteous”.  Since it is apparent that in this world not all Jews are righteous, the verse must be understood as referring to the world to come, where all Jews will be accounted as righteous.  Furthermore, the reference to the possession of the land is understood not as a literal reference to the land of Israel but as a reference to the world to come.
  And these are the ones who have no portion in the world to come: He who maintains that resurrection is not a biblical doctrine, that the torah was not divinely revealed, and an epikoros. Rabbi Akiva says:  “Even one who reads non-canonical books and one who whispers [a charm] over a wound and says, “I will not bring upon you any of the diseases which i brought upon the Egyptians: for I the lord am you healer” (Exodus 15:26). Abba Shaul says: “Also one who pronounces the divine name as it is spelled.”  While criminals can receive a portion in the world to come, those who disagree with the main tenets of Jewish faith do not.  These include:  1) that the doctrine of resurrection is mentioned in the Torah.  Although resurrection is not mentioned literally in the Torah, the Rabbis exegetically derived it from certain verses.  2)  One who denies the heavenly origin of the Torah. One who states that human beings invented the Torah, without even divine inspiration, loses his portion in the world to come.  3)  An epikoros, a Greek word, derived from the Greek philosopher, Epicurus, who encouraged people to seek out the pleasures of this world.  In Rabbinic literature this is a code word for one who despises the Torah, the commandments and the Sages.  4)  According to Rabbi Akiva one who reads sectarian works not included in the Jewish Biblical canon also does not have a portion in the world to come.  5)  Rabbi Akiva further adds to the list one who whispers medical charms.  6)  Abba Shaul adds one who pronounces God’s name by its spelling.  Outside of the Temple this was a forbidden practice.  Today we do not pronounce God’s name as it is written but rather state, “Adonai”.
  Questions for Further Thought:
   Section 2b:  What is wrong with whispering a charm while performing an act of healing?
  Questions for Further Thought:
   Section 2b:  What is wrong with whispering a charm while performing an act of healing?
  
  Mishnah 2
  
  Introduction
  This mishnah discusses seven individual Biblical characters, three kings and four commoners, who do not have a place in the world to come.
  Three kings and four commoners have no portion in the world to come:The three kings are Jeroboam, Ahab, and Manasseh. Rabbi Judah says: “Manasseh has a portion in the world to come, for it says, “He prayed to him, and He granted his prayer, and heard his plea and he restored him to Jerusalem, to his kingdom” (II Chronicles 33:13). They [the sages] said to him:  “They restored him to his kingdom, but not to [his portion in] the world to come.”  The mishnah lists three wicked Jewish kings who have lost their portions in the world to come:  Jeroboam (see I Kings 13:34, 14:10), Ahab (see I Kings 21:21-22) and Manasseh (see II Kings 21:2-3).  All of these Kings encouraged idol worship and shed the blood of God’s true prophets.  For these sins God specifically warns them that they and their seed will be totally cut off from Israel.  Rabbi Judah argues that Manasseh repented and was restored at the end of his days.  The Sages retort that his restoration was political but did not restore his place in the world to come. Implied in their argument is that no matter how heinous the crime, repentance even at the end of one’s days can restore one’s place in the world to come.
  The four commoners are: Bilaam, Doeg, Ahitophel, and Gehazi.  The four non-Kings mentioned in the Torah who do not receive a portion in the world to come are:  1) Bilaam, the prophet who attempted to curse Israel (Numbers 22-24); 2) Doeg, who informed on David to Saul and caused the death of the priests of Nob (I Samuel 22:9-22); 3)  Ahitophel, who advised Absolom against David and subsequently hung himself (II Samuel 17:1-23); 4)  Gehazi, Elisha’s servant (see II Kings 5:20-27).
  Questions for Further Thought:
   Can you think of Biblical characters who you would have thought should have appeared on this list but do not?
  Questions for Further Thought:
   Can you think of Biblical characters who you would have thought should have appeared on this list but do not?
  
  Mishnah 3
  
  Introduction
  This lengthy mishnah lists groups of people in the Bible who do not have a portion in the world to come.  In each case the mishnah brings a Biblical text to proves its point.
  The generation of the flood has no portion in the world to come, nor will they stand at the [last] judgment, as it says, “[And the Lord said,] my spirit will not always enter into judgment with man” (Genesis 6:3), [meaning] there will be neither judgment nor [my] spirit for them.  Due to the extreme severity of their crimes the generation of the flood not only has no portion in the world to come, but they also will not have the opportunity to stand in judgement at the time of the resurrection.  This mishnah discusses in several points a certain type of future judgement, which is somewhat separate from a person’s portion in the world to come.  It is difficult to ascertain with any sense of certainty to what the mishnah is exactly referring.
  The generation of the dispersion have no portion in the world to come, as it says, “So the Lord scattered them from there upon the face of all the earth” (Genesis 11:8): “So the lord scattered them”, refers to this world, “And from there the Lord scattered them” (Genesis 11:9), refers to the world to come.  The generation of the dispersion, which happened when humanity tried to build the Tower of Babel, has no place in the world to come.  The Rabbis understood their sin to be one of rebellion against God.
  The men of Sodom have no portion in the world to come, as it says, “And the men of Sodom were wicked and great sinners before the Lord” (Genesis 13:1:  “wicked” in this world, and “sinners” in the world to come; Yet will they stand at judgment. R. Nehemiah says: “Neither [the generation of the flood nor the men of Sodom] will stand at judgment, as it says, “Therefore the wicked shall not stand in judgment, nor sinners in the congregation of the righteous” (Psalms 1:5) “Therefore the wicked shall not stand in judgment”, refers to the generation of the flood; “nor sinners in the congregation of the righteous”, refers to the men of Sodom. They [the Sages] said to him: “They will not stand in the congregation of the righteous, but they will stand in the congregation of the wicked.”  The men of Sodom also do not have a place in the world to come.  However, according to the Sages, they do have the opportunity to stand in judgement at the time of resurrection.  Although they do not have a promised place in the world to come as do the righteous, they at least have the opportunity to stand in judgement.  According to the Sages, this is also true of the generation of dispersion.  According to Rabbi Nehemiah, they do not even have the opportunity to stand in judgement.  He proves this opinion by using a proof text from the book of Psalms.
  The spies have no portion in the world to come, as it says, “And those men that spread such calumnies about the land, died by the plague before the lord” (Numbers 14:37):  “[they] died”   in this world, “by the plague”   in the world to come.  The spies, who brought back to Moses and the Children of Israel an evil report about the Land of Israel, do not have a place in the world to come.  Due to their extreme lack of faith in God, they are not only killed in this world but lose hope for the future. The final three sections of our mishnah contain disputes between Rabbi Akiva and Rabbi Eliezer.  In each case Rabbi Akiva takes a more strict opinion, one which leaves less hope for the future.
  The generation of the wilderness have no share in the world to come and will not stand at the [last] judgment, as it says, “In this wilderness they shall be consumed, and there they shall die” (Numbers 14:3,  according to the words of Rabbi Akiba. Rabbi Eliezer says: “Concerning them it is said, ‘Bring in My devotees, who made a covenant with Me over sacrifice” (Psalms 50:5).  According to Rabbi Akiva, all of the children of Israel who died in the desert lose their portion in the world to come and are not even allowed to stand for judgement in the time of the resurrection.  Even though this generation received the Torah at Sinai, as well as witnessing the splitting of the Sea of Reeds, their sins in the desert, including the worst sin of all, lack of faith in God when they accepted the spies’ evil report, cause them to lose their portion in the world to come.  Rabbi Eliezer learns from a verse in Psalms that all of those who made a covenant with God have a portion in the world to come, despite the severity of their sins.
  The congregation of Korah is not destined to ascend [from the earth], as it says, “And the earth closed upon them”  in this world, “and they perished from among the congregation” (Numbers 16:33)   in the world to come, according to the words of Rabbi Akiba. Rabbi Eliezer says: “Concerning them it is said,  ‘The Lord kills and makes alive: He brings down to Sheol, and brings up” (I Samuel 2:6).  According to Rabbi Akiva, the congregation of Korach who were swallowed up by the Earth in punishment for rebelling against Moses and Aaron will never be brought back up.  Rabbi Eliezer disagrees.  Based on a verse in I Samuel he points out that God has the power not only to send down to Sheol but He may bring up as well.
  The ten tribes will not return [to the Land of Israel], for it is said, “And He cast them into another land, as is this day” (Deuteronomy 29:2: just as the day goes and does not return, so they too went and will not return: according to the words of Rabbi Akiba. Rabbi Eliezer says: “‘As is this day’   just as the day darkens and then becomes light again, so the ten tribes   even as it went dark for them, so will it in the future become light for them.  According to Rabbi Akiva, once the ten northern tribes of Israel (see II Kings 17) were sent into exile they were never to return.  Again, Rabbi Eliezer disagrees.  Although the day turned metaphorically dark on these tribes, they retain the hope for a bright future.  Just as the night eventually turns to light, so too will the ten tribes one day be returned to their land.
  
  Mishnah 4
  
  Introduction
  Our mishnah discusses the punishment of a city seduced into idol worship (see Deuteronomy 13:13-19), which was mentioned briefly in chapter nine, mishnah one.  There we learned that the inhabitants are to be executed by decapitation.  The remainder of chapter ten will discuss various details of this law.  We should note that these laws were certainly not practiced in the time of the Mishnah and Talmud, and according to one opinion in the Talmud there never was such a thing as a city that was judged as having been seduced into idol worship.
  The inhabitants of a city seduced into worshipping idols have no portion in the world to come, as it says, “Certain men, wicked persons, have gone out from among you and seduced the inhabitants of their town” (Deuteronomy 13:14).  The first section is the bridge which connects this mishnah and the remainder of the chapter with the beginning half of the chapter, which dealt with those who have a portion in the world to come.  The inhabitants of a city seduced into worshipping idols lose their place in the world to come.  This is learned from the words in the quoted verse, “have gone out from among you”, which is understood by the author of the mishnah to mean that they have left the whole of Israel (clal Yisrael) to whom is promised a portion in the world to come.
  They are not executed unless the seducers are of that city and that tribe, and until the majority of the city are seduced, and the seducers are men. If women or minors seduced it, or if a minority of the city were seduced, or if the seducers were from outside the city, they are treated as individuals, and therefore two witnesses and a formal warning are necessary for each [offender].  From the words, “the inhabitants of their town” the mishnah learns that those who seduce the others into worshipping idols must be from the same town as those being seduced.  From the words “from among you” the mishnah learns that they must be from the same tribe of Israel.  The mishnah also states that the majority of the city must be seduced in order for it to be deemed a seduced city whose inhabitants are to be decapitated.  It is unclear from which part of the verse the mishnah learns this law.  Since the verse specifically states “men” the mishnah concludes that the seducers must be men. If any of these criteria are not met, i.e. the seducers are women or minors, or a minority of the city is seduced or the seducers are from another city, those who have worshipped idols are judged and sentenced individually.  This means that witnesses are required to testify against each one of them and each one must be warned that if s/he worships idols s/he will be executed.
  In this [the penalty of] individuals is severer than [that of] the multitudes, for individuals are stoned, therefore their property is saved; but the multitudes are decapitated; hence their possessions are destroyed.  Finally, the mishnah compares the punishment of an individual who worships idols with those of a city seduced into worshipping idols.  Each one receives both a stringency and a leniency.  Individuals are executed by stoning (see chapter 7, mishnah six), a more stringent form of the death penalty, therefore their property is not destroyed and their descendents may receive their inheritance.  Those of a seduced city are executed by decapitation, which is a less stringent form of the death penalty, therefore their property is destroyed and their descendents do not inherit.
  
  Mishnah 5
  
  Introduction
  Mishnah five (and mishnah six) contain midrashim, exegeses, on the verses in Deuteronomy that discuss the city seduced into idol worship. The structure of these mishnayoth is to quote a verse and then bring a law that is derived from that verse.
  “You shall surely smite the inhabitants of that city with the edge of the sword” (Deut. 13:16):  a company of donkey-drivers or camel-drivers passing from place to place saves the city.  The verse states that you must smite the inhabitants of the city.  If, however, there are people living in the city who are not permanent inhabitants, such as donkey or camel drivers, they are not counted as part of the city in order to add up to the majority needed for the city to be declared a “seduced city”.  Occasionally they may save the city from being doomed.
  “Doom it and all that is in it” (ibid.):  From here they said that the property of the righteous, which is within [the city] is destroyed, but that which is outside of the city is saved, while that of the wicked, whether in or outside of the city, is destroyed.  From the words “and all that is in it” the Rabbis learn that even the property of the righteous is to be destroyed.  However, from the words “doom it”, the Rabbis understand that the Torah is limiting that which is destroyed.  The property which belongs to the righteous that is outside of the city is therefore not destroyed.  However, the property of the wicked is destroyed whether or not it is in the city itself.
  
  Mishnah 6
  
  Introduction
  Midrash six concludes the exegesis on the verses discussing the city seduced into idol worship.
  “And you shall gather all its spoil into the public square” (Deut. 13:17):  if it had no public square, one is made for it; if the public square was outside of [the city], it is brought within it.  The Torah states that the spoil must be brought into the public square.  If the city did not have a public square, or the public square existed outside of the city limits, the court must build one before the sentence is carried out.
  “And you shall burn with fire the city, and all its spoil as a whole burnt offering for the Lord your God” (ibid.):  “And all its spoil”, but not the spoil of heaven. From here they said, the holy objects in the city must be redeemed and the heave offerings ( allowed to rot; and the second tithe and the sacred writings hidden.  The spoil that is to be burned is property that belongs to people and not property that has in some way been sanctified.  Therefore, things that were dedicated to the Temple are redeemed with money and the money is brought to the Temple.  After having been redeemed the object is no longer holy and may be burned.  The terumoth may not be burned while they are edible and therefore must be allowed to spoil.  The second tithe and holy books may never be burned.  In order to prevent people from using them they are hidden.
  “A whole burnt offering for the Lord your God”:   Rabbi Shimon said:  “The holy Blessed One declared, ‘If you execute judgment upon the seduced city, I will ascribe merit to you as though you had sacrificed to me a whole offering.’”  The verse states that the spoil must be entirely burned.  Rabbi Shimon compares this burning with the sacrificial burning of whole burnt offerings (olah).  Although the burning of the spoil of a seduced city is not literally a sacrificial offering, since it is not offered on the altar, and most of the things being burned will not be fit to be offered on the altar, nevertheless Rabbi Shimon states that God will reward those who burn the spoil the same as He rewards those who offer sacrifices.
  “And it shall remain an everlasting ruin, never to be rebuilt”: it may not be made even into gardens and orchards, according to the words of Rabbi Yose the Galilean. Rabbi Akiva says: “Never to be rebuilt”: it may not be built as it was, but it may be made into gardens and orchards.  Rabbi Yose the Galilean and Rabbi Akiva disagree with regards to the interpretation of the words, “never to be rebuilt”.  According to the former nothing may ever be again built on that site.  Rabbi Akiva understands the verse in a more minimalist fashion.  The city may not be rebuilt exactly as it was; however, gardens and orchards may be built in its place.
  “Let nothing that has been doomed stick to your hand, in order that the Lord may turn His blazing anger and show you compassion” (Deut. 13:18):  as long as the wicked exist in the world, there is blazing anger in the world; when the wicked perish from the world, blazing anger disappears from the world.  The mishnah finishes with an exhortation stating that until these laws are fulfilled, God’s anger cannot be fully assuaged.  According to the Talmud, the “wicked” refer to those who take from the spoil of the seduced city.  For an illustration of how serious a crime taking from illegal spoil was considered to be read Joshua, chapter seven.  There Achan takes from the spoil, and as a punishment God causes Israel to lose an important battle.  It is not until Achan is executed that God’s anger is assuaged (see verse 26).
  Questions for Further Thought:
   Why was taking from illegal spoil considered to be such a serious crime?  Can you think of other Biblical stories that illustrate this point?
  Questions for Further Thought:
   Why was taking from illegal spoil considered to be such a serious crime?  Can you think of other Biblical stories that illustrate this point?
  
  
  
  
  
  Mishnah 1
  
  Introduction
  The final chapter of Sanhedrin returns to the categorization of which criminals receive which death penalty, a topic that the Mishnah began to discuss in chapter seven.  Our chapter discusses those who are executed by strangling.  According to the Rabbis anyone whom the Torah states should be executed without stating the form of the execution, is to be executed by strangling, which is the least destructive and probably least painful form of execution.
  The following are strangled: One who strikes his father or mother; One who kidnaps a Jew; An elder who rebels against the ruling of the court; A false prophet; One who prophesies in the name of an idol; One who commits adultery; Witnesses who testified falsely [to the adultery of] a priest’s daughter, and the one who has had sexual relations with her.  As did the mishnah with regards to those executed by stoning, burning and decapitation, so too with regards to strangling the mishnah first lists all of those who are punished by this form of execution.  The mishnah will now proceed, from here to the end of the tractate to go into greater detail with regards to each category.  We will therefore explain each category and its Biblical proof texts as we come to them later in the Mishnah.
  The one who strikes his father or his mother is liable only if he wounds them. In this respect, cursing is more stringent than striking, for one who curses [his/her parents] after death is liable, while one who strikes them after death is not.  Exodus 21:15 teaches that one who strikes either of his parents is liable to the death penalty.  Striking an ordinary person is not a capital crime and is punishable through financial penalties only.  However, striking one’s parent is a form of rebellion against not only society but in essence against God as well.  Therefore the Torah deems it, and cursing one’s parents (Ex. 21:17) to be capital crimes, punishable by death.  Since the Torah does not state how the execution is to be performed, the Rabbis declared that the person is to be strangled. Our mishnah teaches that in order for the child to be guilty of striking he must make a wound.  If the child strikes without causing a wound s/he is not to be executed. The mishnah also teaches that although a child is executed for either striking or cursing one’s parents, there is a stringency with regards to cursing that does not exist with regards to striking.  One who curses is liable even if he curses the parent after death, whereas one who strikes is only liable if the parent was alive when struck.
  One who kidnaps a Jew is not liable unless he brings him onto his own property. Rabbi Judah said: “Until he brings him onto his own property and puts him to service, as it says, “If a man is found to have kidnapped a fellow Israelite, enslaving him or selling him” (Deut. 24:7). If he kidnaps his own son.   Rabbi Ishmael the son of Rabbi Yohanan ben Beroka declares him liable, but the Sages exempt [him]. If he kidnapped one who was half a slave and half free,     Rabbi Judah declares him liable, but the Sages exempt [him].  Exodus 21:16 and Deuteronomy 24:7 both state that one who kidnaps is liable for the death penalty.  Our mishnah defines kidnapping as taking a person and bringing them forcefully onto one’s property.  Just the mere act of taking the person does not constitute the type of kidnapping punishable by death.  Rabbi Judah, basing himself on the verse in Deuteronomy states that even kidnapping and bringing onto one’s property is not punishable by death.  Only if the kidnapper forces the abductee to work as a slave is he to be executed. According to the Rabbi Yishmael the son of Rabbi Yohanan ben Beroka, one who kidnaps his own son is not liable as a kidnapper, whereas the Sages say that he is.  Rabbi Yishmael probably assumes that a parents’ authority over their children is so great that categorically the laws of kidnapping cannot apply.  The Sages, representing the majority opinion, limit the parents authority by applying the laws of kidnapping even to one’s own child. The aforementioned verse in Deuteronomy clearly limits the laws of kidnapping to an Israelite who kidnaps another Israelite.  According to all of the Sages in our mishnah, one who kidnaps a non-Jew is not liable for the death penalty.  There is however a dispute with regards to one who is half a slave and half a free Jew (i.e. he was owned by two owners and one freed him while the other did not).  According to Rabbi Judah, the mere fact that he is half a Jew means that the laws of kidnapping do apply to him.  According to the Sages since he is half a slave, the laws of kidnapping do not apply.
  Questions for Further Thought:
   Section two:  Is there a thematic connection between the laws taught in section 2 and section 2a?
  Questions for Further Thought:
   Section two:  Is there a thematic connection between the laws taught in section 2 and section 2a?
  
  Mishnah 2
  
  Introduction
  Mishnayoth two through four deal with the rebellious elder, who is considered to be an ordained elder who taught against an authoritative ruling of the high court in Jerusalem.  While Jewish learning is usually quite pluralistic, allowing for the existence of many differences of opinions without deeming one to be heretical, there is a theoretical limit to this pluralism.  The high court in Jerusalem was considered to be the final word in all matters.  An ordained teacher who ruled against the high court in a matter of practical law was to be condemned to death.  Since the high court has not existed since the time of the destruction of the Temple in Jerusalem, this law is (for better or for worse) no longer enforceable.
  An elder rebelling against the ruling of the court [is strangled],  for it says, “If there arise a matter too hard for you for judgement […you shall promptly repair to the place that the Lord your God will have chosen, and appear before the levitical priests, or the magistrate in charge at the time, and present your problem.  When they have announced to you the verdict in the case, you shall carry out the verdict that is announced to you from that place that the Lord chose, observing scrupulously all their instructions to you.  You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left.  Should a man act presumptuously and disregard the priest charged with serving there the Lord your God, or the magistrate, that man shall die” (Deut. 17:8-13, JPS.  This section introduces the Biblical prooftext for the category of the rebellious elder.  The Torah mentions one who “acts presumptuously”, ignoring the teaching of the priestly magistrate.   The Torah does not state who this person was, or under what circumstances he disobeyed the authority of our court.  Our mishnah attempts to define this person, giving, interestingly enough, a narrow definition.  This definition will leave much room for a Jew to disagree with even the high court, without allowing total disobedience to its rulings.
  Three courts of law were there, one situated at the entrance to the Temple mount,   another at the door of the [Temple] court,  and the third in the Chamber of Hewn Stone. They [first] went to the court which is at the entrance to the Temple mount, and he [the rebellious elder] stated, “Thus have I expounded and thus have my colleagues expounded; thus have I taught, and thus have my colleagues taught.” If [this first court] had heard [a ruling on the matter], they state it. If not, they go to the [second court] which is at the entrance of the Temple court, and he declares, “Thus have I expounded and thus have my colleagues expounded; thus have I taught, and thus have my colleagues taught.” If [this second court] had heard [a ruling on the matter] they state it; if not, they all proceed to the great court of the Chamber of Hewn Stone from whence instruction issued to all Israel, for it says, [you shall carry out the verdict that is announced to you] from that place that the Lord chose (Deut. 17:10).  This section describes the judicial process by which an elder could be brought to the high court. When an elder made a teaching upon which the other elders disagreed he is first brought to the court that sat at the opening of the Temple mount.  The elder is allowed to state how he expounded the Torah or how he taught and how his colleagues expounded or taught.  If this court had heard a ruling with regard to the matter they would decide in the matter.  If not they would send him to the court that sat at the entrance to the Temple court, where the process would be repeated.  If they too had not heard a ruling then they would send him to the highest court, the great court that sat in the Temple in the Chamber of Hewn Stone.  This court would by necessity make a ruling, one that was considered authoritative for all of Israel.
  If he returned to his town and taught again as he did before, he is not liable. But if he gave a practical decision, he is guilty, for it says, “Should a man act presumptuously” (Deut. 17:12) he is liable only for a practical ruling. But if a disciple gave a practical decision [opposed to the court], he is exempt:   thus his stringency is his leniency.  This section lists under what circumstances the elder is to be deemed guilty and therefore executed.  If he continues to teach as he was teaching previously, thereby ignoring the verdict of the high court, but does not tell others to act according to this teaching, he is not guilty.  This is learned from the word “to do” in the verse in Deuteronomy.  One is allowed to disagree with the high court, but not to incite others to act against their rulings. A student, who is never allowed to give practical halachic rulings, who does give a practical halachic ruling, and that ruling is against that of the high court, is also not to be executed.  Since his ruling is not authoritative in any case, because he is only a student, it is not considered to be the type of rebellion punished by death.  The stringency that disallows a student from teaching is the leniency that gets him off the hook if he teaches contradictory to the high court.
  Questions for Further Thought:
   Why do the lower courts state whether they had “heard” a ruling on the matter and not whether they “know” a ruling on the matter?  What about the high court?  Do they have to have “heard” a ruling on the matter?  What if they had not?
   Why is the elder allowed to continue to teach that he disagrees with the authoritative ruling but not allowed to act or teach others to act according to his own opinion?  What does this say with regards to the nature of Jewish law?
  Questions for Further Thought:
   Why do the lower courts state whether they had “heard” a ruling on the matter and not whether they “know” a ruling on the matter?  What about the high court?  Do they have to have “heard” a ruling on the matter?  What if they had not?
   Why is the elder allowed to continue to teach that he disagrees with the authoritative ruling but not allowed to act or teach others to act according to his own opinion?  What does this say with regards to the nature of Jewish law?
  
  Mishnah 3
  
  Introduction
  Mishnah three continues to discuss the rebellious elder.
  There is greater stringency in respect to the teachings of the scribes than in respect to the torah:  [thus,] if [a rebellious elder] says, there is no commandment of tefillin, so that a biblical law may be transgressed, he is exempt. [But if he rules that the tefillin must contain] five compartments, thus adding to the words of the scribes, he is liable. This mishnah states that a rebellious elder who teaches against a Rabbinic teaching, one not mentioned explicitly in the Torah, is dealt with more severely than one who teaches against the explicit words of the Torah.  An elder who states that there is no commandment of tefillin is not to be executed, since the commandment of tefillin is stated explicitly in the Torah (Exodus 13:9, 16, Deuteronomy 6:8, 11:18).  Anyone who hears this elder teach that there is no tefillin will be able to check the Torah and realize that the elder’s teaching is false.  However, one who states that the tefillin must be made of five boxes, instead of the four prescribed by the Rabbis, is liable for the death penalty. Since the Torah does not state how many boxes are to be in the tefillin, this is a teaching that if we didn’t know from the Rabbis we would not know at all.  Therefore, an elder who teaches against this teaching is more of a threat than the elder who teaches against something stated specifically in the Torah. Note:  The tefillin worn on one’s head contain four boxes but the one worn on the arm contains only one box.  From the outside each is painted black and therefore looks like one box.
  
  Mishnah 4
  
  Introduction
  Mishnah four discusses the execution of the rebellious elder.
  He [the rebellious elder] was executed neither by his local court nor by the court at Yavneh, but rather was taken to the great court in Jerusalem and kept there until the [next] festival  and executed on the festival, for it says, “And all the people shall hear and fear, and do no more presumptuously” (Deut. 17:13), according to the words of Rabbi Akiba. Rabbi Judah says:  “His judgment must not be delayed, but he is executed immediately, and proclamations are written and sent by messengers to all places, “So and so has been sentenced to death at the court.” The execution of the rebellious elder has a deterrent quality to it, demonstrating to all who see or hear the execution that rebellion against the high court is punishable by death.  There are two opinions in our mishnah with regards to how the execution is to be carried out.  According to Rabbi Akiva, the execution must take place at the high court, where it will receive the most exposure.   Furthermore, it must take place during the festival when Jews would gather at the Temple to celebrate.  Only by bringing the person to the Temple and executing him on the holiday will the execution achieve the maximum deterrence.  Rabbi Judah seems to be disturbed by the long wait between the sentence and execution which would result from Rabbi Akiva’s suggestion. Rabbi Judah therefore states that the rebellious elder is to be executed immediately, and the deterrent will be achieved by sending letters with messengers stating that so and so had been executed.
  Questions for Further Thought:
   Why is Rabbi Judah so concerned that the execution take place immediately?
  Questions for Further Thought:
   Why is Rabbi Judah so concerned that the execution take place immediately?
  
  Mishnah 5
  
  ‘A false prophet’; he who prophesies what he has not heard, or what was not told to him,  is executed by man.But he who suppresses his prophecy, or disregards the words of a prophet, or a prophet who transgresses his own word , his death is at the hands of heaven, as it says, “[And if anybody fails to heed the words he speaks in my name] I Myself will call him to account (Deut. 18:19).Mishnah five defines the “false prophet” who is executed by strangling.Deuteronomy 18:20 states that any prophet who “presumes to speak in My name an oracle that I did not command him to utter” shall be killed.  Our mishnah teaches that a false prophet is one who states a prophecy that he either did not hear at all, or that he heard from another person and not straight from God.  However, a prophet who hears the words of God but does not tell others (like Jonah) or one who ignores the words of another prophet (see I Kings 20:35-36) or one who ignores even his own prophecy (see I Kings 13:26) is killed not by a human court but by God.  This exegesis presents an interesting twist on the verse quoted from Deuteronomy.  The simple meaning of the verse is that a member of the tribe of Israel who ignores the true words of the prophet is not to be executed by the court but God will take His own revenge.  The mishnah interprets the verse to refer not to a normal person, but to the prophet himself.
  
  Mishnah 6
  
  Introduction
  The first section of mishnah six defines what it means to prophesy in the name of an idol. The remainder of the mishnah discusses the adulterer.
  “He who prophesies in the name of an idol”:  this is one who says, “Thus has the idol declared” even if he directed the teaching to declare the unclean, unclean, or the clean, clean.  One who prophesies in the name of an idol is liable for the death penalty even if his teaching agreed with the accepted halacha.  The very act of attributing a teaching to an idol is punishable by death regardless of the content of the teaching itself (see Deuteronomy 18:20).
  “One who has sexual relations with a married woman” after her entry into her husband’s home for marriage, though she did not have sexual relations with her husband, the one who has relations with her is strangled.  Adultery with a married woman is punishable by strangling whereas adultery with a betrothed woman is punishable by stoning (see chapter 7, mishnah four).  Our mishnah defines the moment that a woman is transformed from being a betrothed woman to being a married woman.  That moment is defined as her entering her husband’s house, after having left her father’s house, regardless of whether or not she has yet had sexual relations with her husband.  Henceforth anyone who has adultery with her will be punished by strangling and not stoning.
  “Witnesses who testified falsely [to the adultery of] a priest’s daughter, and the one who has had sexual relations with her”, for all false witnesses are led forth to meet the same death [which they sought to impose,] save witnesses who testified falsely [to the adultery of] a priest’s daughter, and the one who has had sexual relations with her.  Generally, when a witness is found to have testified falsely, he is punished with the same punishment that he tried to impose on the accused (see Deuteronomy 19:16-21).  We will learn about this law in greater length in the next tractate, Makkoth.  Witnesses who testify falsely with regards to a priest’s daughter who committed adultery, punishable by burning, (see chapter nine, mishnah one) and the one who had relations with her, punishable by strangling, are not burned as they tried to impose on her but rather strangled as they tried to impose on him.  Since with one act of false testimony they testify that she is to be burned and he is to be strangled, they (the false witnesses) are punished by the lesser of the two, which is strangling. Congratulations!  We have finished Sanhedrin. It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives. For those of you who have learned with us the entire tractate, a hearty Yasher Koach (congratulations).  You have accomplished a great deal and you should be proud of yourselves.  Indeed we have now finished together four tractates of Mishnah, and are more than halfway through the entire order of Nezikin.  Of course, we have much more to learn.  We will begin Makkoth tomorrow!