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It is a well known halacha, based on the verse “Yad HaEidim Tihiyeh Bo Barishona L’Hamiso…” that in a capital case, the person is put to death by the witnesses’ hands.
My question is very simple: what if they don’t want to do it?
I’m pretty sure that, as far as the condemned go, there is little difference. He’s not going free. My question is, what can Bais Din do (if anything) to force the witnesses, or, if they refuse completely, what punishment would they receive?
The Wolf
I don’t know what the question is. It says yad kol hoom beachrono. Even as a rodaf he would get killed by anyone.
A long time ago, Bais Din actually had the power to control life and death. They had the ability to enforce their rulings.
When Bais Din ordered someone to do something, it made no difference whether or not the person “wanted to” comply or not. Bais Din was quite capable of ensuring that their rulings were complied with.Why would the witnesses have brought the case to begin with?
In Anglo-American law the State (Crown, whatever – in the US, the local public prosecutor) brings the case and summons witnesses (sometimes against their will), and coerces them to testify in many cases.
The word “witness” in English implies a bystander with information based on what they saw. The Hebrew word עֵד should probably be translated more as “accuser” as the role of the עֵד is similar to that of a grand jury or public prosecutor in that the עֵד initiates the criminal proceeding.
Also note the Jewish courts can receive and use information from persons who do not have the status of עֵד whereas an Anglo-American court can not based in decision on the facts from someone who isn’t a “witness”.
So if two Jews give warning and witness the murder of someone, for a non-controversial example, a Nazi war criminal, and then decide that the murderer was justified in killing the Nazi, there is no requirement for them to go to Beis Din a initiate a criminal proceeding – though under American law the witnesses would be accessories if they didn’t report the murder of the Nazi, though the Prosecutor could dismiss the case “in the interests of justice” (at least under Anglo-American law, some Roman-law based systems require the prosecutor to proceed on all complaints).
רמב”ם הלכות סנהדרין פרק יג הלכה ז
מי שנגמר דינו וברח ובא לבית דין אחר אין סותרין את דינו אלא כל מקום שיעמדו שנים ויאמרו מעידין אנו את איש פלוני שנגמר דינו בבית דין פלוני ופלוני ופלוני עדיו הרי זה יהרג, במה דברים אמורים ברוצח אבל שאר חייבי מיתות עד שיבואו עדיו הראשונים ויעידו שנגמר דינו ויהרגוהו בידם, והוא שיעידו בבית דין של עשרים ושלשה.Interesting Goldilocks wants to apply the rule by get that that we force him to give, similarly we force the witnesses.
There’s a separate punishment for refusing to listen to Bais din and their son halacha in the person’s case. This is besides for the punishment they ordered in regards to the case itself that the person is in Bais din for.
Reb Eliezer, is it a novel concept to you that people should be required to comply with orders given to them by a Bais Din?
Are you suggesting that compliance ought to be oprional?
Btw would you mind sticking to English in the future? It’s kind of a tease when I’m following a thread and there’s a post I don’t understand.Beis Din doesn’t get a case unless someone brings the case. American courts get criminal cases when the public prosecutor (in New York, the District Attorney, of the United States Attorney) presents charges. A traditional Beis Din (when they had full criminal authority) requires witnesses to present charges. If the witnesses don’t want to present the charge, the Beis Din doesn’t hear the case. So if the witnesses don’t want to kill the criminal, the case will not be initiated. Therefore the situation in the question will never arise.
The significance lies in the assumption that the witnesses are telling the truth to the extent that they will have to take his life based on their own testimony. Klal Yisrael following the Witnesses also have to show that they believe in the system. Therefore killing the protagonist has a by product in addition to removing the evil. It also shows our belief that אלוקים נצב בעדה.
I think theyv have a responsibility to be witness. Goldilocks, I will explain in English. The Rambam says that in certain situations we force the husband to divorce the wife because this marriage is bad for them. The idea is that person wants to obey and follow the Torah but the yetzer hara, bad inclinatiion, makes him resist. When we physically force him, we knock out the yetzer hara from him and restore his original will. Similarly, the witnesses are physically forced to follow the Torah and being instrumental in killing him by removing the murderer. The Torah on Mount Sinai was given by an act force of threatening to bury them under the mountain applying the same logic.
@akuperma
I’m assuming his hypothetical case would be where eidem convicted someone with meesah, and only afterwards realized that they’d have to do the execution, or a case where after being mechuyav the guy meesah, they changed their minds and decided they’re too squeamish for it.I think that it encourages the witnesses to tell the truth as they know usually or told that they will have to start the execution.
Let me thread the needle for you. We tell the witnesses that by doing their part they will be showing their trustworthiness. Because if they refuse it might be said that they are not shtark in what they testified and are backing out. So in response to the question of what to do the answer is we give them chizuk. Farshteyst?
the whole reason for testimony is chesed with the perpetrator so that he gets his atonement they a the first to punish bec. this shows their integrity and it gives them a chance to finish the chesed they started but still if they refuse they may be over an asei i’m not sure
but either way the rest of the punishment will still be carried out bec. if not the perpetrator will miss out his caporohMy Rebbe told me all Yidden back then were Heilige Yirei Shomayim. Of course they would of enthusiastically followed the Daas Torah of Bais Din.
“ Of course, if they were *all* Heilige Yirei Shomayim,” there would be no need for a Beis Din of 23 to exist in the first place.”
Chazal tell us that Tzlafchad was a Tzadik and Yorei Shomayim.
So, apparently, your assumption is not correct.
“ That assumes that the witnesses were told beforehand that they would have to carry out the execution. But let’s say that:”
But let’s say?
You can’t hoist ask veiberishe questions.
Malkus Mardus until they comply or die refusing.
So you’re positing that the punishment for refusing to carry out an execution is greater than the punishment given out to the condemned they are supposed to execute?
No. If they comply they don’t get anything. Plus Malkus mardus is dRabbonim and tzorich chizzuk yoser midivrei Torah.
@WolfishMusings
I haven’t read through every post here, but I am very disappointed at the quality of response to answer your simple and legitimate question.(My feeling is that it falls into the category of a mitzvah for them to comply, just as Rambam counts it as a mitzvah for Beis Din to administer misah, or any court consequence. So, whatever recourse they have to enforce any mitzvah, applies here too – I just don’t know what that is. Or if they don’t comply, perhaps beis din won’t force them at all, and that’s just their aveirah between them and Shomayim, and being that the possukim go on to allow others to finish off the sentence after them, beis din will just resort to that now too.)
Let me know once you find an answer.
As counterintuitive as it sounds, I think Baltimore Maven is correct.
Good question!
It is a mitzvah on the witnesses to carry out the execution. I am unsure if the requirement is on them personally. Perhaps they can send an emissary.
If they refuse to even be nominally involved in the execution, it is possible that the criminal would be released. I assume that the din of ‘the walking dead’ would apply. This does not seem to be a reason to retroactively negate the testimony.
I would not consider their defiance as challenging the bais din. Rather, it is an unwillingness to perform a mitzvah. I doubt the rule of makkos maardus applies to communal mitzvos. So, the only consequence the witnesses face, is being called reshaim, by denying justice. The same as a witness who refuses to testify.
I was thinking about you during mincha leining and I looked in the shaarei Aharon and he quotes someone (can’t remember who) that since bnei yisrael are rachmanim so they wouldn’t want to kill him if he didn’t do the aveirah
So I wanted to add it’s achzarius if they don’t kill him because they should want to give him a kapparah
Dear CA. many thanks for responding. My grandmother used to say א מאל רחמנות קען זיין אכזריות. You seem to concur. BTW is your Sefer SA from the Chevron Rosh Yeshiva Rav Cohen?
Benepheaim,
It’s by Aaron roter he takes from a lot of places
The gemara says regarding Shaul hamelech that since he was compassionate where he shouldn’t be (by agag) he became cruel where he shouldn’t be (by nov)
Dear CA we need some Baalei Mussar to explain the Gemara of Shaul. was it מדה כנגד מדה or עבירה גוררת?
Wouldn’t it be similar to a father who refuses to מל or פודה his son?
As I mentined that it might apply כופין אותו שעד שאומר רוצה אני as the Rambam says by divorce.
There is no reason to force the father, as circumcision could be done without him. The question is, can an execution be carried out without the witnesses?
Although not directly on point, as I don’t believe that the Gemora deals with the question of recalcitrant witnesses directly, the Gemora does say in Sanhedrin 46a right before the mishna, that Beis din can give malkus and onshin including death, when necessary. One case was a guy who was riding a horse on Shabbos (d’Rabbonon) and another case was PDA (public display of affection)
Dear Baltimore,
Maybe the reverse can be deduced from this gemara. Since even in this instance the gemara (To my memory.) included the witnesses, it seems that the entire death penalty may actually hinge on the witnesses personally carrying out the execution. Maybe it follows that the witnesses cannot be forced to carryit out, because then they are on longer witnesses. A forced husband is still her husband. But coerced witnesses makes for for zero testimony. The best resolution I see, is for the convict to remain in the realm of ‘the walking dead’. And the witnesses are required to do teshuva for perverting justice. But they face no direct consequence.
Wolf
It’s not clear that a flat out refusal would still result in the courts carrying out the sentence.
Sanhedrin 45b and Rambam Sanhedrin 14:8 State a specific case. The case involves witnesses who hands were chopped off after the verdict was finalized. And the result is the death penalty will not be carried out bc the pasuk says “The hands of the witnesses should be a first”(devarim 17:7)
The rambam States that a murderer is an exception to the rule. In regards to a murderer the rule is is that if he’s trying to escape anybody should kill him in anyway possible.
strictly based on these sources I would say that if the witnesses run away absolutely the Death penalty will not be carried outOn the other hand contrast this with the case of the son of Shimon Ben Shetach
The witnesses recanted Yet the penalty was still carried out. The obvious question is who carried it out. Is it logical to assume that the witnesses who had severe regrets actually agreed to do the process? Or did the courts appoint an executioner?
Based upon everything that I’ve seen in the sources and the specific language, I don’t believe that the witnesses actually have to carry out the full death penalty. I believe the Pasuk can be understood as they just need to start the process. So perhaps if they simply pick up the sword and then hand it to the court appointed executioner that would be enough.
And my guess is that the courts would force them to at least do this minimal amount so that they can carry out the sentenceDear Mentsch,
Nice answer!
What kind of force?
N0mesorah
It was an intriguing question. Gave me something to do over shabbos.
But to answer your question, I have no clue. The whole thing is an educated guess. But it can’t be hard to get two big guys to grab the arm of the individual and force him to pick up a sword.
The Rambam phrases carrying out the missa as a mitzvas bais din, but we have the limiting factor that the witness has to go first. So my guess is, since it seems to be a necessary component, they force him somehow.
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