We now open the eleventh and final chapter of Tractate Sanhedrin, which appears in the Babylonian Talmud as the tenth chapter. We enumerated four ways in which a court administers the death penalty, and we have expanded at length on three of them. The fourth way is the subject of the chapter before us: death by strangulation. This death is administered by the two witnesses who testified and brought about the conviction of the condemned; they pull a scarf from both sides around his neck and hold it until his soul departs.
Thirty-six transgressions in the Torah carry the possibility of the death penalty, and six of them are liable to strangulation - and these are the subjects of the chapter before us. It is worth noting that strangulation is the default death penalty: anywhere the verse does not specify the method of execution, and there is no derivation explaining how it should be done, but it is rather stated in general terms "he shall surely be put to death" and the like - the method of death is strangulation.
Mishnah 1 includes three matters: the count of the transgressions whose punishment is strangulation, followed by a discussion of the first two of those transgressions, while the rest of the transgressions will be discussed later in the chapter.
"Eilu hen hanichnakin" - These are the ones who are strangled:
The following six cases are liable to be punished by strangulation, provided all conditions are met - witnesses, forewarning, and the like. Here we will present the explanation of the matters only briefly, and the details of the laws will be fully explained during the course of the chapter:
"Hamakkeh aviv ve'imo" - One who strikes his father or his mother, provided he drew blood, as explained in the details of the laws.
"Vehagonev nefesh miYisrael" - One who kidnaps a Jew.
"Vezaken mamre al pi beis din" - An elder who rules halachah contrary to the Sanhedrin, after clarifying the matter before them.
"Unevi hasheker" - One who prophesies in the name of Hashem, but does so falsely.
"Vehamitnabeh beshem avodah zarah" - One who says that the source of his prophetic experience and the message he delivers are not from Hashem, but from another deity.
"Vehabo al eishes ish" - A regular adulterer: a married woman and a man who is not her husband who cohabits with her, and the possible punishment is strangulation for both of them.
The Mishnah also adds tangentially that "Zomemei bas kohen uvola" - conspiring witnesses of a kohen's daughter and her paramour, are also punished with strangulation. In brief: a kohen's daughter who is a married woman who committed adultery - her punishment is burning and not strangulation, while her paramour's punishment is strangulation, and the source for this will be discussed later and the details of the law will be explained in the final Mishnah of the chapter. The point here is that when the witnesses were proven to be conspiring witnesses and it became clear they lied, although her punishment was supposed to be burning and his punishment strangulation, the punishment of the conspiring witnesses (if the other conditions are met) is strangulation. The Mishnah does not count this case as one of the six cases, since conspiring witnesses are punished from the law of "as he plotted to do to his brother."
One who strikes his father or his mother:
The conjunctive "vav" ("and") in the phrase "his father and his mother" means "or" here - one who strikes his father or his mother, and the verse is explicit that his law is death.
The Mishnah teaches that there is no liability for death unless the son made a bruise. The meaning of a "bruise" throughout the entire Torah, and as Rashi writes in the Chumash, is a hemorrhage - an accumulation of blood under the skin as a result of a ruptured blood vessel, and not necessarily bleeding outside the body. There is a long and ongoing discussion among the Acharonim whether outward bleeding is required here or if internal bleeding is sufficient, and simply put, a bruise here is like a bruise anywhere, although some say that actual bleeding is required for death liability.
If the son struck his parent and made a bruise - his possible punishment is death by strangulation, and nothing more. If he struck but did not make a bruise - he transgressed the general prohibition of striking a Jew, which is forbidden toward every person in Israel, and if damage was caused, he pays his parents the five payments: damage, pain, healing, loss of livelihood, and embarrassment, as obligated.
The Mishnah presents an additional stringency that applies to one who curses over one who strikes. As we have seen, one who curses his parents is punished with stoning, a much more severe punishment than strangulation, and in addition to this: "Zeh chomer bamakelil mibemakkeh, shemakelil le'achar misah chayav" - This is a stringency in one who curses over one who strikes, that one who curses after death is liable - one who curses his parents after their death is liable to stoning, while one who strikes after death is exempt: even though his deed is terrible, he is not liable to death. The source of the law is in the verse: "For any man who curses his father and his mother shall surely be put to death," and the verse repeats and adds "his father and his mother he cursed" - and this repetition teaches that the liability exists even after the parent's death.
Kidnapping a Jew:
The third part of the Mishnah, which appears in the Babylonian Talmud as the third Mishnah, deals with the second transgression in the list - kidnapping. "Hagoneiv nefesh miYisrael eino chayav ad she'yachnisenu lirshuto" - one who kidnaps a Jew is not liable until he brings him into his domain - the kidnapper is not liable to the death penalty until he brings the kidnapped person into his domain, his territory, or his property.
The simple understanding is that this law differs from other types of theft: one who steals a cow and pulls it in an alleyway - this is an act of acquisition, and the cow is acquired by him even though the alleyway is not a private domain. However, regarding kidnapping, an act of acquisition in an alleyway is not enough; rather, his actual private domain is required, such as his house or his courtyard. Some disagree and maintain that its law is like anything else, but it appears that the Rambam understands that the matter depends solely on a person's private domain.
Two separate verses in the Torah deal with kidnapping, one in the Book of Shemos and one in the Book of Devarim. The verse in the Book of Devarim is mentioned in part in our Mishnah: "If a man is found kidnapping a person of his brethren of the Children of Israel, and he enslaves him and sells him." The word "found" is the source of the exposition that we will see below; "and he enslaves him" - that he makes him work and exploits him for some service; "and sells him" - that he sells him to another.
It turns out that four conditions must be met in order to be liable to this death penalty in practice, and only when all four are met is there a death penalty:
The kidnapped person must be Jewish.
The kidnapper brought him into his domain, into his own private domain.
He exploited the kidnapped person and used him.
He sold the kidnapped person to another person.
The simple understanding is that both things - "and he enslaves him" and "and sells him" - must be fulfilled together, as the letter vav in "and sells him" means 'and also', and this is the halachah. It is worth noting that the Geonim, Rav Saadiah Gaon and Rav Hai Gaon, deduced that the vav means 'or': either he made him work and exploited him for some service, or he sold him - and that is enough for liability to the death penalty.
As an aside: the prohibition against stealing in the Ten Commandments refers to kidnapping a person and not to stealing objects, to be precise.
"Rabbi Yehudah omer: ad she'yachnisenu lirshuto ve'yishtamesh bo, shene'emar 've'hitamer bo umechero'" - Rabbi Yehudah says: until he brings him into his domain and uses him, as it is stated 'and he enslaves him and sells him' - according to Rabbi Yehudah, bringing him into the private domain is not enough; rather, use of the kidnapped person is also required. In practice, both according to the Sages and according to Rabbi Yehudah, some use is required, as the verse says "and he enslaves him". The difference between them: according to the Tanna Kamma, any exploitation or use is sufficient, while Rabbi Yehudah maintains that the use must reach a minimal measure of the value of a perutah. But if he leaned on him for a moment or asked him to hold his pen for a moment - that is not enough.
"Hagoneiv et beno" - one who kidnaps his son - one who kidnaps his own son. Rabbi Yishmael the son of Rabbi Yochanan ben Berokah deems him liable, as there is no difference between his son and one who is not his son, and the Sages exempt him. Their reasoning is that it is stated "and he is found in his hand" - that he is found under his control, and the verse comes to exclude someone who is already permanently with him, such as his son, his brother, or even his student who stays with him permanently, like a boarding school principal whose students are with him. For kidnapping such a child, there is no liability to the death penalty.
"Ganav mi she'chetzyo eved ve'chetzyo ben chorin" - one who kidnaps someone who is half slave and half free:
This refers to a slave who was not born Jewish and became the slave of a Jew, and his status is like an 'almost Jew' who is obligated in mitzvos like a woman. He had two owners, and one of them freed him: he is thus half free, and his status is like a full Jew, since he has already become obligated in mitzvos - an indirect way of a sort of conversion. However, the second owner did not free him, so he is half enslaved and half a full Jew. One who kidnaps such a person, is he considered a Jew for whom one is liable to the death penalty?
Rabbi Yehudah holds him liable, while the Sages exempt him and maintain that the victim must be a full Jew. The foundation of this dispute is technical, depending on the exposition of the word "mei'echav" in the verse "If a man is found kidnapping a soul from his brethren, of the children of Israel": Is this word available for exposition and comes to exclude a slave, or is a slave perhaps included in the category of "his brethren"? One can say that there is no brotherhood with slaves, or one can say that they are called your brothers, since they are obligated in mitzvos like a woman. On this basis, they argue whether we have two exclusions or three, and this determines whether they serve to include or exclude. The bottom line is that the halachah follows the Sages, that we only have two exclusions, and therefore someone who is half slave and half free does not meet the criteria, and one who kidnaps him is not liable to the death penalty.
To summarize: In this chapter, we are dealing with death by strangulation, which is the default death penalty wherever the Torah does not specify the method of execution. We listed the six offenders who are strangled, and we learned the first two: One who strikes his father and his mother - who is only liable if he inflicts a wound, and that one who curses them commits a more severe offense in that he is liable even after the parents have died; and one who kidnaps a Jew - who is not liable until he brings the victim into his domain, uses him, and sells him.
Later in the chapter, we will discuss the other offenses whose punishment is strangulation: a rebellious elder, a false prophet, one who prophesies in the name of an idol, and one who has relations with a married woman.