1) The Shitah Mekubetzes here cites the Ritva who writes that even at the time when the Sanhedrin still convened, the Din of the four capital punishments, that can also take place without the Sanhedrin, was still required for a case where there were no witnesses or warning for the crime. So the Din of the four capital punishments (that somebody who is Chayav Sekilah will fall off a roof, etc.) applies when there is no warning or witnesses, and it is the same punishment through Shamayim, as we learn in the Gemara here (30b), that Min Shamayim he receives Sekilah.

2) Someone under 20 receives a punishment from the Beis Din, but a punishment from Shamayim is given only from 20 and up (see Shabbos 89b and Rashi DH Dal).

3) The Gemara (Makos 2b) deals with the Halachah that the Beis Din carries out in this world. Rebbi Yochanan says that if a person murdered deliberately, he does not go to the Ir Miklat, even though he did an action. So it is a Kal va'Chomer that if witnesses merely said that someone is liable for Galus, but did no action to this effect (rather they merely spoke when they testified), they certainly will not be punished with Galus.

4) I do not see what the problem is with the Kal va'Chomer. If a person killed willfully but there were no witnesses or warning, he will not go to Galus. The Gemara (Makos 10b) tells us that as a punishment from Shamayim he will be killed when somebody falls on him.

5)

a) The Sefer Hafla'ah here (beginning of 30b) writes that we see from Sanhedrin 37b that if there were no warning and witnesses, the same death penalty that would have been given by Beis Din is instead administered Min Shamayim. This is the incident where Shimon ben Shetach saw somoene chase a victim into a ruin, and came out with blood dripping from his sword, and the victim dying. Shimon ben Shetach said that he cannot be sentenced to death since there are no witnesses, but Hash-m will give him his punishment, which is what happened when the murdererer was immediately bitten by a snake. The latter is equivalent to Sereifah, and the Gemara states that he received this punishment (even though it is not the appropriate one for murder) because he had previously commited a different crime for which he was liable Sereifah. Tosfos there (DH mi'Yom) writes that if there is no warning or witnesses, the same punishment that would be given by Beis Din is given by Shamayim.

b) The Hafla'ah adds that whenever Kares is mentioned in connection with the capital punishment (for example, if there would have been witnesses and warning, the Sanhedrin would have put him to death, but since there are no warning or witnesses, the punishment is Kares; see Rashi, Shabbos 6a, DH Anush and DH v'Niskal, -DB), this means that he will receive Kares by dying under 50 (or will die without offspring, according to Rashi's explanation of Kares) but he will also die in the way that Beis Din would have carried out the punishment.

6) However, if we look closely at Rashi in Kesuvos 37b (DH Misos Kalos) and the Shitah Mekubetzes there, I think we will see that this does not conform with the Hafla'ah's Pshat.

a) According to the Shitah Mekubetzes (37b), the death penalty is the same through Shamayim and Beis Din only for transgressions which do not carry a punishment of Kares.

The Gemara in Kesuvos 37b states that for capital punishments given by Beis Din, it is not possible to pay money and avoid the punishment. The Gemara states that a separate source for this Halachah is required both for "Misos Chamuros" ("severe death penalties") and for "Misos Kalos" ("light death penalties").

b) What are "Misos Chamuros" and what are "Misos Kalos"? Rashi (DH Ela Misos) writes that Misos Chamuros are punishments for since such as inflicting a wound on one's father or kidnapping a Yisrael. For both of these transgressions, only Misah at the hands of Beis Din is prescribed, and it is never possible to receive Kares for them. Since there is no Kares for committing the sin deliberately, there is no Chatas sacrifice to be brought if it was done inadvertently. It follows that the Torah gives no way of receiving atonement for these crimes, so they are called Misos Chamuros.

c) In contrast, Rashi (DH Misos Kalos) writes that "light death penalties" are those where there is Kares whenever it was done wilfully but without warning. THe Shitah Mekubetzes (DH v'Ein) explains what Rashi is saying. The Misos Chamuros (wounding the parent or kidnapping the Yisrael) carry no Kares with them, so it follows that they remain as severe as they ever were even though there was no warning. Beis Din cannot execute them, since there was no warning, but the severity remains and the punishment from Heaven will come, as Kesuvos 30b states that the four capital punishments still exist. The Misos Kalos are different. Here the punishment of Kares exists if there was no warning. Rashi writes that Kares is called a light death.

d) The Shitah Mekubetzes does not agree with the Hafla'ah. Misah Kalah means that he receives Kares but does not receive the same punishment from Shamayim as the Beis Din would have given. He will die under 50, or without offspring, but he will not die in the same way as the Beis Din would have inflicted. This is not the same as the Hafla'ah who writes that he gets the Beis Din way of punishment from Shamayim in addition to Kares. However, for Misos Chamuros there is no difference between the Shitah Mekubetzes and the Hafla'ah. Since there is no Kares, everyone agrees he will get from Shamayim the same punishment that Beis Din would have given.

(See Otzaros Divrei Yatziv, by the Klausenbeger Rebbi, Maseches Shabbos 6a, p. 35, DH veha'Nir'eh.)

5) Tosfos does not agree with the Pshat of the Shitah Mekubetzes.

a) The Shitah Mekubetzes maintains that for "light penalties," if there is no warning or witnesses the transgressor receives Kares and does not receive Min Shamayim the punishment of Beis Din, as we saw above, bs'd. I want to try to prove, bs'd, that Tosfos does not agree with this.

b) Tosfos (30b, DH Din) questions what the Gemara says, that the Din of the four punishments has not been abolished. If so, how is it that we observe transgressors and idol-worshippers who die in their beds and do not fall off the roof, etc.? Tosfos answers that these people might have done Teshuvah, or sometimes they possess a special merit which saves them.

c) However, from the fact that Tosfos asks this question, we see that he does not agree with the Shitah Mekubetzes, because according to the Shitah Mekubetzes this question is not difficult. As Rashi (37b, DH Misos Kalos writes), idol-worship is punished by Kares if done willfully without warning, and according to the Shitah Mekubetzes if someone receives Kares he does not receive the punishment that would have been given by Beis Din. Therefore, one would expect an idol-worshipper to die under the age of 50, or the age of 60 according to the opinion that this is the age for Kares, or without offspring according to the opinion that this is the definiton of Kares. But one would not necessary expect him to die in the unnatural way of people liable to the Beis Din punishment, because he receives his punishment by the slighlty more natural way of Kares.

d) So Tosfos does not agree with the Shitah Mekubetzes. But the Shitah Mekubetzes says his Pshat according to Rashi. This means that, according to the Shitah Mekubetzes, the question that we started with turns out to be a dispute between Rashi and Tosfos. According to Rashi, if there were no witnesses or warning, the transgressor will not get the punishment that would have been given by Beis Din (even it he did not do Teshuvah or did not possess any special merit), while according to Tosfos he will always receive the punishemnt of Beis Din (unless he does Teshuvah or possesses merit).

6) The above findings can help us, bs'd, understand the Gemara in Shabbos 6a and other similar sources.

a) As a conclusion to what I have written, bs'd, I think I should point out that there is a wonderful finding here in the name of the Klausenberger Rebbe zt'l (whom I cited briefly earlier). The point is that the explanation of the Hafla'ah (that when there is no warning and witnesses, the transgressor receives both the punishment of Beis Din and that this happens before the age of 50 or 60 or that he also dies without offspring (according to the different Shitos about what Kares is)) is reasonably well-known. It is on the Sugya, and the Hafla'ah is a classic Sefer, so this is not a Perush which is so hard to find.

b) However, the opinion of the Shitah Mekubetzes (by Rav Betzalel Ashkenazi zt'l), who says that for sins for which the punishment is Kares one only receives the "lighter" punishment of Kares and not the Misah of Beis Din together with it, would be extremely difficult to find. It is in an entirely different Sugya, and without a few very terse words of the Klausenberger Rebbe, with his incredible Beki'us, one would never reach this and notice that the Shitah Mekubetzes disagrees with the Hafla'ah (who lived over two hundred years after Rav Betzalel Ashkenazi).

c) These opinions helped me to get a better understanding of the Gemara in Shabbos 6a. The Gemara there states that if somebody deliberately took out an item from Reshus ha'Yachid to Reshus ha'Rabim on Shabbos, he is "punished with Kares and Sekilah." Rashi (DH Anush) writes that this means that if there was no warning, he receives Kares, while if he was warned, he receives Sekilah. The obvious question on this Gemara is, what happened to the punishment Min Shamayim even when there is no warning? The answer now is that according to the Hafla'ah the transgressor receives that punishment as well, while according to the Shitah Mekubetzes, since he receives Kares he does not also receive the punishment of Beis Din.

Dovid Bloom

1) Yes, that is a good observation. The Gemara states there that it refers to someone who has committed the same transgression twice and received Malkus twice for this. He is not someone who merely wants to taste forbidden things, because otherwise he would have done different transgressions, not the same one each time.

2) The Gemara in Sanhedrin 81b is where there is never Misas Beis Din:

Thinking about this again, I think the Sugya of "Kipah" is for transgressions where he would only get Kares, not the capital penalty from Beis Din (for example, eating on Yom Kipur or having relations with his sister). I suggest that the transgressor is trying to take advantage of the fact that Beis Din could never execute him (and, in addition, he will not get the Heavenly punishment, such as falling off the roof, since in Beis Din he is not liable for Sekilah), even though it is a very serious crime. Possibly this is why Chazal have the power to place him in the Kipah.

Yasher Ko'ach!

Dovid Bloom

1) The Rambam (Hilchos Rotze'ach 4:8-9) writes that this Mishnah refers to a case of murder, since the latter crime has such an adverse affect on society.

2) In fact, it seems to me that, on the contrary, the second Mishnah on Sanhedrin 81b is a support to what I have been arguing -- that there is not really a direct connection between the Gemara in Kesuvos 30b and Sanhedrin 81b. The Peshat in Sanhedrin 81b is not that Beis Din is carrying out, by means of the Kipah, the punishments that it cannot carry out through the standard rules of Beis Din. Rather, the Beis Din has permission, through the "Kipah," to take action in certain special circumstances, in order to improve the world. The second Mishnah discusses the murderer of whom we are fully aware what he is doing, but we cannot actually convict him. This is a person whom we know for sure is destroying society, so Beis Din has the power -- in order to protect his future potential victims -- to put him in the Kipah. Similarly, according to the way I am learning the Peshat in the first Mishnah on 81b, we are confronted with an offender who is deliberately playing with life and death. He is wilfully and repeatedly offending against Kares transgressions, not because of a desire to enjoy the transgressions but simply to show the world that he can deny the Torah and get away with it, without being punished for this. So again, Beis Din is given the power to place him in the Kipah.

2) The Gemara in Kesuvos 30b is different. There, it is all a punishment from Heaven. The offender is not necessarily deliberately doing what he is doing in order to avoid punishment; rather, he is doing something which deserves punishment, but Beis Din cannot give it to him. The Gemara tells us that if somebody is liable for the punishmnent but Beis Din cannot administer it, then Min Shamayim he will anyway receive the punishment.

3) I think I should try to explain a bit more fully, bs'd, what I have written above.

a) The Rambam (Hilchos Rotze'ach 4:8) describes the circumstances in which a murderer can be placed in the Kipah. Basically, they are all cases in which we know that he murdered, but there are certain technical reasons why Beis Din cannot put him to death in the normal way. The first possibility is that two witnesses saw the murder, but they did not see it happen together; rather, one saw it after the other. Another possibility is that two witnesses saw it, but the murderer did not receive a warning. The third possibility is that the Sanhedrin managed to obtain contradictory evidence from the witnesses on side matters; for example, they gave contradictory information about the tree which was behind the victim at the time of the murder.

All of these are very specific cases. In each case the Beis Din knows for sure who perpetrated the murder but for technical reasons the punishment cannot be administered. In these special cases the Beis Din possesses the license to apply the punishment of Kipah.

b) In Hilchos Rotze'ach 4:9, the Rambam elaborates further. He writes that the punishment of Kipah is not applied for other capital crimes, only for murder.

I think what the Rambam means is that if one knows for sure that, for example, an individual worshipped idols but could not prove this in Beis Din, in this case one could not apply the Onesh of Kipah. The Rambam explains further the reason for why murder is different. This is because "although there are crimes more serious than bloodshed, none lead to the destruction of society like bloodshed."

c) There is quite a bit more to write on this topic, but I think we have already seen a glimpse that "Kipah" is very different from other capital penalties.

Dovid Bloom