JUDGING WITHOUT WITNESSES [judgment :witnesses]




83b: R. Elazar b'Rebbi Shimon found a king's official who used to seize thieves. The official confessed that he is not sure that he gets the thieves, but he must do what the king decrees.


R. Elazar: Do thusly: at the fourth hour of the day, see who is drinking wine in the store and dozing. Ask about him;


If he is a Chacham, he is tired because he rose early to learn. If he is a worker, he rose early to work. If he works at night, he is tired from working at night. If none of these apply, he is a thief. Seize him!


The king heard about this. He appointed R. Elazar to seize thieves.


R. Yehoshua ben Korchah (to R. Elazar): Vinegar, son of wine (your father was a Tzadik, but you are not)! How can you deliver Hash-m's people to be killed?!


R. Elazar: I am only eliminating the thorns from the vineyard!


R. Yehoshua: Let Hash-m remove them Himself!


One day a launderer called R. Elazar 'vinegar, son of wine'. R. Elazar reasoned that anyone so brazen must be evil. He had him seized.


Later, R. Elazar decided that the launderer was not worthy to die. He went to redeem him, but was unable to. He applied to him "Shomer Piv u'Lshono Shomer mi'Tzaros Nafsho". The launderer was hung; R. Elazar cried.


Onlookers: Don't feel bad. He and his son had Bi'ah with a Na'arah Me'urasah on Yom Kipur!


R. Elazar was comforted. 'Even people I am unsure about deserve to die. All the more so, people I am sure about deserve to die! Worms will not consume my innards after death.' He tested this. They removed fat from his stomach and put it in the hot sun; it did not rot.


A similar case occurred with R. Yishmael b'Rebbi Yosi. Eliyahu protested, and suggested that he flee.


Sanhedrin 45b (Mishnah - R. Eliezer): We hang a man facing people, we hang a woman facing the beam;


Chachamim say, we hang only men, but not women.


R. Eliezer: Shimon ben Shetach hung women in Ashkelon!


Chachamim: He hung 80 in one day, even though we do not judge two capital cases in one day (it was due to an urgent need, it was not according to Halachah).




Rambam (4): If Beis Din sees that people wantonly transgress a matter, they should fence and fix it as they see fit. Shimon ben Shetach once hung 80 women in one day in Ashkelon without proper interrogation of witnesses or warning or clear testimony. It was a Hora'as Sha'ah based on what he saw.


Question (ha'Ramach): How could he kill them without proper testimony?! The Gemara said that it was Hora'as Sha'ah to kill different Misos on the same day. If there was not proper interrogation or warning or testimony, the Gemara would have said so!


Rambam (5): Beis Din can lash someone of ill repute if everyone says that he transgresses Arayos. This is if the reports do not cease and he does not have known enemies that might be starting the reports. We disgrace a person of ill repute and revile his parents in front of him.


Rosh (Teshuvah 18:13): A case occurred in which a widow became pregnant. There were unceasing rumors and circumstantial evidence that it was from a certain Nochri, but no witnesses. She herself admitted this. It caused a disgrace to Torah in the eyes of Nochrim. To prevent other women from doing similarly, they decreed to cut off her nose to mar the face that she prettied for the adulterer. I agree; it should be done immediately lest she frequent bad company. She should also be fined according to her wealth.


Bach (CM 2 DH v'Nir'eh) The episode with Shimon ben Shetach is the source of the Rambam and Rosh, who do not require proper testimony.


Hagahos Tur ha'Shalem (27): The Gemara does not say that Shimon ben Shetach acted without testimony. Perhaps they learn from Yehoshua (who killed Achan) and David (who killed the Ger Amaleki based on the Ger's own admission).


Note: Perhaps they understand that there is not time in one day to accept, interrogate and deliberate 80 testimonies in one day. However, the Gemara says only that they were not all the same case. Perhaps two witnesses testified against 40 women (e.g. they all did witchcraft), and another two testified against the rest (e.g. they served idolatry)!


Ritva (Bava Metzia 83b DH Omar): R. Elazar acted without witness or warning and when there is no Beis Din. He was a Shali'ach of the king.


Birkei Yosef (CM 2 DH Shavti): The Ritva determined that he did not rely on the power of Beis Din because he judged alone, based on estimation. Also, it seems that R. Elazar did so constantly, so it could not be a Hora'as Sha'ah.




Shulchan Aruch (CM 2:1): Any Beis Din, even if it is did not get Semichah in Eretz Yisrael, if it sees that people wantonly transgress a matter (and it is necessary at the time) they can impose death or any other punishment, even if there is not full testimony. All their actions must be l'Shem Shomayim. Only the Gadol ha'Dor may do so, or Tuvei ha'Ir (the governors of the city) if Beis Din authorized them.


Source #1 (R. Yerucham 2:8:3), cited in Beis Yosef (DH v'Nir'eh).


Source #2: Rivash (251, also cited in Beis Yosef DH v'Nir'eh): Beis Din can punish according to the needs of the time, even without proper testimony. However, we are more apt to punish when there is greater testimony. We would cause a murderer to die (by locking him in a cell - Sanhedrin 81b) when there was not sufficient testimony against him. Some say that this is when the witnesses did not see each other, or there was no warning, or the witnesses disagreed about minor details. No one says that we do so based on one witness or women or Pesulim.


Beis Yosef (DH v'Chosav ha'Rashba and DH v'Gam): The Rashba says that if the testimony is clear, the judges can make a monetary or bodily fine as they see fit. This sustains the world. If we were limited to Torah law, and required witnesses and warning for everything, the world would be desolate. Yerushalayim was destroyed because they stuck to Torah law. Shimon ben Shetach hung 80 women, even though the Torah does not allow hanging women or killing different Misos on the same day. All the more so judges authorized by the king may do so, like R. Shimon ben Elazar did. However, the judges must act l'Shem Shamayim and weigh it carefully.


SMA (6): Just like testimony is not needed, also warning is not needed. However, capital cases require warning with the consent of the city's Chachamim.

See also:

Other Halachos relevant to this Daf:

MORED B'MALCHUS (Megilah 14)