We are beginning the ninth chapter of tractate Sanhedrin, Mishnah 1. The discussion on execution by the court continues: we have already enumerated that four forms of capital punishment were given to the court, and the first of them, which we discussed at length, was stoning - and it includes eighteen transgressions. Now we will move on to the second of them, burning, which includes ten transgressions whose punishment is burning - the pouring of molten metal into the throat of the condemned.
Only two cases are explicitly stated in the Torah:
Bat kohen - the daughter of a kohen who married and committed adultery.
One who cohabits with his mother-in-law - his wife's mother.
The law regarding a bat kohen is an exception: generally, when two people are forbidden to each other and cohabit willingly and with mutual consent, they both receive the same punishment. However, a bat kohen who commits adultery - she is condemned to burning, while her paramour is condemned to strangulation.
From the law of one who cohabits with his mother-in-law, the Sages derived eight additional similar cases, making a total of nine forbidden sexual relationships whose punishment is burning, which are divided into three groups of three - as we will see in the text of the Mishnah.
"V'eilu hen hanisrafin" - And these are the ones who are burned:
"Haba al ishah uvatah" - one who cohabits with a woman and her daughter. The correct way to understand the Mishnah is that the daughter is his legitimate and lawful wife, and the woman who is forbidden to him is his wife's mother, meaning his mother-in-law. One who cohabits with his mother-in-law, even if his wife is no longer alive, is punished with burning.
"Uvat kohen shezintah" - and a bat kohen who committed adultery. A bat kohen who committed adultery after she married is also condemned to burning. We must be precise with the language of the Mishnah: it does not say "one who cohabits with a bat kohen," as it does with other forbidden sexual relationships, but rather "a bat kohen who committed adultery" - because only she is condemned to burning, and not her paramour.
The Mishnah continues: "Yesh bichlal ishah uvatah" - included in the category of a woman and her daughter. In the category derived from the primary case of a woman and her daughter, which is his mother-in-law, there are nine cases including the case itself, and they are divided into three groups of three:
"Batah uvat batah uvat benah" - her daughter, her daughter's daughter, and her son's daughter. This refers to a man who cohabited with a woman who is not his lawful wife, and descendants who are his blood relatives were born from her: the daughter of that woman, her daughter's daughter, and her son's daughter - meaning his daughter or his granddaughters. All three are forbidden to him.
"Uvat ishto uvat batah uvat benah" - and his wife's daughter, her daughter's daughter, and her son's daughter. The daughter of his wife could be his own daughter from his wife, or she could be a stepdaughter: a man who married a woman who has a daughter who is not his biological daughter. This also applies to his wife's granddaughters, her daughter's daughter and her son's daughter, who are his step-granddaughters and not his biological granddaughters.
"Chamoto v'em chamoto v'em chamiv" - his mother-in-law, his mother-in-law's mother, and his father-in-law's mother. His mother-in-law is the "woman" in "a woman and her daughter," the mother of his wife. Along with her, the grandmothers of his wife are forbidden: "his mother-in-law's mother" - the mother of his mother-in-law, his wife's grandmother on her mother's side; "his father-in-law's mother" - the mother of his father-in-law, his wife's grandmother on her father's side.
That is nine in total: eight derived from his mother-in-law, and his mother-in-law herself. Together with a bat kohen who committed adultery - there are ten transgressions whose punishment is burning.
In the version of the Mishnayot before us, the Mishnah continues from here onward in the very same Mishnah, whereas in the Babylonian Talmud, a new Mishnah begins here.
"V'eillu hen haneheragin" - And these are the ones who are executed:
These are the ones liable to death by the sword, which is decapitation with a sword. Even though the word "killed" might serve as a general term for execution, in this context it specifically means decapitation. There are two who are executed [in this manner]:
The murderer.
Anshei ir hanidachat - The residents of a city that was incited to idolatry.
From here we also have the total calculation: eighteen by stoning and ten by burning - that makes twenty-eight; and another two by decapitation - that makes thirty; and finally six will be added whose punishment is strangulation.
Anshei ir hanidachat: We have already learned about the enticer and the inciter, and the inciter is one who incites an entire city to idolatry; the ir hanidachat is the city that was incited. Every one of its residents who engaged in idolatry is liable to death, but unlike a regular idolater whose penalty is stoning, as we saw above, here, because he worshipped as part of an incited city, the majority of which turned to idolatry, his penalty is decapitation.
The murderer: One who intentionally kills a Jew, doing everything in his power to kill him, and the victim indeed dies. The Mishnah expands on these laws from here onward.
The laws of the murderer:
"Rotze'ach shehikkah et re'ehu ba'even u'vabarzel" - A murderer who struck his fellow with a stone or with iron, hitting him with a rock or a metal tool, whether a blow to the head with a metal pipe or a stab to the heart with a dagger. "V'chevesho l'toch hamayim o l'toch ha'or" - Or pressed him down into water or into the fire, meaning even if he did not push him into the water, but found him inside and forced his head down until he drowned. In all these cases he killed him directly with his own hands, whether with metal, wood, or stone, or whether by drowning or burning in fire. "U'met - chayav" - And he dies, he is liable: He is a murderer and is liable to execution by decapitation. And of course, this is provided that he was warned first - "Do not do this, lest you kill him" - and he did it nonetheless.
"Dechafo l'toch hamayim o l'toch ha'or, v'yachol la'alot misham - patur" - If he pushed him into the water or into the fire, and he is able to climb out from there, he is exempt. He pushed him into a pool, and naturally the victim could have gotten out, but his muscles cramped and he was unable to climb out. Since the act he committed was not a lethal act and was not supposed to cause death, even though that is what actually happened, he is exempt. He is a wicked person, but he is not a murderer, and therefore he is exempt from execution by the court.
Similarly, one who performs an act that caused death indirectly rather than directly is exempt, even though here he is truly a murderer. However, he is exempt from the laws of man, from execution by the court.
"Shissah bo et hakelev, shissah bo et hanachash" - If he incited a dog against him, or incited a snake against him, meaning he sent dogs to attack him, even murderous dogs that are ready to tear him to pieces, or he sent a snake against him. Ultimately, it was the dogs that killed him, or the snake that killed him, and not him. Therefore, even though he is a murderer, since he caused his death intentionally and willingly, he is exempt, because he did not carry out the killing himself.
What is the law when he took the viper, which is a venomous snake, and thrust its fangs directly into the body of the victim?
Everyone agrees that if someone dips a needle in poison and sticks it into a person and he dies, this is absolute murder, just like injecting him with poison or stabbing him in the heart. The question is therefore whether inserting the snake's fangs is like sticking someone with a poisoned needle or poisoned arrow, or whether it is like inciting a snake against him, where the snake performs the killing. On a deeper level, the matter depends on whether the venom is, so to speak, present in the fangs and ready for action, or whether the snake itself must decide to release its venom.
Rabbi Yehudah makes him liable: You killed him, and it is like sticking a poisoned arrow into him - the poison is ready for action, and you are the one inserting it into his body.
And the Sages exempt him: The venom does not sit in the fangs waiting to flow on its own. Rather, the snake must perform its action and secrete its venom into the fangs, and from there into the person's body. Thus, the act is done indirectly, and the one who incited it is exempt.
The Rambam rules according to the Sages, and clarifies that in all these cases - whether one incites a dog or a snake - he is a murderer in every respect, but he is exempt from execution by the earthly court, and Heaven will settle the account with him.
"Amaduhu Le'mitah":
To conclude the Mishnah, though in the Babylonian Talmud this is a new Mishnah: "Ha'makeh et chavero bein ba'even bein ba'egrof" - if one struck his fellow Jew with a stone or a fist, "ve'amaduhu le'mitah" - and the court comes to see him where he is lying and assesses that he was dealt a fatal blow, and it is only a matter of time until he dies. It turns out that the striker is a murderer, but the victim has not yet died; therefore, the court apprehends the striker and imprisons him, waiting to see what will happen in the end.
"Ve'hekel mima she'hayah, u'le'achar mikan hichbid u'met, chayav" - if the victim's condition improved, and everyone thought he was going to recover, but afterward it worsened again until he died, he is liable. The striker is liable to the death penalty for murder, since it became clear that his blow was a fatal blow, but it just took its time; and the victim's temporary recovery is irrelevant, because the death came as a result of the fatal blow.
"Rabbi Nechemiah omer patur" - Rabbi Nechemiah says he is exempt. In his opinion, if his condition improved and then deteriorated again, the striker is exempt, because there are "raglayim la'davar" - there is a sound basis to say that the blow alone did not cause the death, and perhaps an infection or another cause that occurred later joined it, and the combination of the two caused the death. The halachah follows the Tanna Kamma.
Interestingly, the Rambam, based on the version in the Jerusalem Talmud, explains "raglayim la'davar" as referring to the previous case, and this is how he rules: If he struck him and they assessed that he would die, and it is only a matter of time, even if his condition improved and then worsened again - there are grounds to say (raglayim la'davar) that the original blow caused the death, and therefore the striker is liable.
To clarify matters: In a case where the victim eventually recovered and did not die, the striker is liable for injury payments like anyone who injures his fellow, and there are five of them:
Nezek - the permanent damage caused to him.
Tza'ar - the physical pain he suffered.
Boshet - the emotional pain (embarrassment) he suffered.
Rippui - the medical expenses.
Shevet - the loss of his ability to work until he recovered.
And how is it determined when the victim is fully healed, such that if he gets sick again and dies, the striker is exempt? The Rambam writes that the measure is that he can walk in the marketplace like anyone else, meaning he has risen from his sickbed and walks about like normal people. At this stage, he is considered healed, and if he gets sick again and dies - everyone agrees that the striker is not considered the exclusive cause of his death, and therefore he is completely exempt from the death penalty.
In summary: In this chapter we enumerated the ten transgressions whose punishment is burning - nine forbidden sexual relations derived from the law of one's mother-in-law, in three groups of three, and the daughter of a kohen who committed adultery, who alone is burned while her paramour is punished by strangulation. Afterward, we enumerated the two who are killed by the sword: the murderer and the people of a subverted city (Ir HaNidachat). In the laws of the murderer, we learned the distinction between direct killing, which is punishable by death, and Grama (causation) and indirect killing, where the perpetrator is a murderer but exempt from human justice; the dispute between Rabbi Yehudah and the Sages regarding one who had a snake bite a person; and the law of one who was assessed to die, whose condition improved and then worsened until he died.
In the following mishnayos, we will further expand upon the laws of the murderer.