We are continuing in chapter 1 of tractate Sanhedrin, with mishnah 5, which deals with the special types of cases judged exclusively by a court of seventy-one - which is the Great Sanhedrin that sits in the Chamber of Hewn Stone in Jerusalem.
"Ein danin... et hashevet" - We do not judge... a tribe:
We do not judge an entire tribe. That is to say, when the majority of a tribe of Israel worshiped idols, we do not judge the sinners as a collection of individuals - in which case each and every one would be judged in a court of twenty-three - rather, we judge the entire tribe as a whole, in a court of seventy-one. It is understood that the actual punishment applies only to those individuals who worshiped idols.
This law is learned from the verses dealing with the punishment of an idol worshiper: "Then you shall bring out that man or that woman who has done this evil thing to your gates... and you shall stone them with stones, and they shall die." "Your gates" refers to the location of the court, and the punishment is stoning. The inference is in the language of the verse - "man" or "woman," an individual. But once it concerns a tribe, or at the very least a majority of a tribe acting together, it is no longer a private matter but a national matter. This is the rule underlying the entire mishnah: national events, or considerations concerning the entire nation or a large part of it, are judged in the Great Sanhedrin.
"Velo et nevi hasheker" - Nor a false prophet:
This refers to someone who prophesies in the name of God and is revealed to be a liar. The decision of whether he is indeed a false prophet must be made in the Great Sanhedrin and not in a court smaller than it. This is learned through a gezeirah shavah from the law of a zaken mamre (rebellious elder) - an ordained judge in his own right, who ruled contrary to the binding decision of the Great Sanhedrin, and who is also liable to the death penalty. Just as a rebellious elder is judged before a court of seventy-one, so too is a false prophet.
"Velo et kohen gadol" - Nor a kohen gadol:
The kohen gadol is also judged in a court of seventy-one, but this refers only to a specific case: a kohen gadol standing trial for a capital offense. In regular claims - monetary disputes, an unpaid loan, injuring another, and the like - he can be brought even before a court of three, as we will yet learn. But when he is facing the death penalty, there is a special derivation because of his elevated status.
The source of this law is in the verses stated in the words of Yisro to Moshe: "Every great matter they shall bring to you" - all important and significant matters should be brought to Moshe, who is the pinnacle of the legal system. And the exposition is: "The great" - this is the kohen gadol; "the matter" with the definite article - this is not a regular matter but the great matter, meaning capital cases.
"Ve'ein motzi'in lemilchemet hareshut" - And we do not lead out to an optional war:
The king is not permitted to lead the nation and its army out to an optional war. An optional war is a war that is not obligatory, a war of choice, whose motives are economic gain, political gain, or strategic advantage and national security. In contrast, a war of mitzvah is an obligatory war: the war against Amalek and the war against the seven nations that Israel was commanded to destroy upon entering the land. The Rambam adds that any enemy of Israel acting in an organized manner to kill Jews - fighting them is a war of mitzvah, to save Jewish lives.
But one who wishes to expand the borders of Israel for political, economic, or strategic reasons is not permitted to do so without consultation and approval from the Sanhedrin. The king is the initiator, but he needs approval. The Gemara explains that the approval of the Sanhedrin is a necessary condition, but it is not a sufficient condition. The order of things, as learned from the verses, is this:
A king who wishes to go out to an optional war consults with his advisor and his general, and asks if it is proper.
After their agreement, the matter is brought to the Sanhedrin, and it approves it.
Following this, they turn to the kohen gadol, who is asked via the Urim V'Tumim - the illuminating letters in the breastplate, which operate by the power of the Name of God placed within them, and through which an answer is received from Above.
Once all the agreements have been received - from the advisor, from the Sanhedrin, and from the Urim V'Tumim - the king instructs his general to execute the war plan.
"Ve'ein mosifin al ha'ir ve'al ha'azaros" - And we do not add to the city or to the courtyards:
We do not expand the borders of the city, meaning the city of Jerusalem. The reason for this is that certain things - eating kodashim kalim (sacrifices of lesser sanctity), maaser sheni (the second tithe), and neta revai (fruit of the fourth year) - must be done within the walls and boundaries of Jerusalem. Practically, the borders could be redefined and the walls expanded outward, and indeed the walls of Jerusalem were rebuilt and readjusted many times throughout history - but this may not be done without the approval of the Sanhedrin.
The same law applies to the azaros, meaning the dimensions of the courtyards of the Holy Temple. Many laws depend on them as well: restrictions of tumah and taharah regarding who is permitted to enter, as well as the obligation of the kohanim to eat the kodshei kodashim (most holy sacrifices) within the courtyard, and the like. The rules are fixed, but changing the boundaries requires the approval of the Great Sanhedrin.
And even here, the Sanhedrin is a necessary condition, but not a sufficient one. To change the boundaries of Jerusalem or of the courtyards surrounding the Temple, the following are additionally required: the approval of the king, consultation with a prophet - a matter that is not simple at all - and asking the Urim V'Tumim. Only once they have all given their consent is it possible to proceed and change the boundaries.
"Ein osin sanhedraos lashvatim ela al pi beis din shel shivim ve'echad" - We do not establish Sanhedrins for the tribes except by the directive of the court of seventy-one:
Simply put, we do not appoint the Sanhedrins - the courts of twenty-three - for the tribes, except with the approval and appointment of the Great Sanhedrin of seventy-one. The basis of this is the Torah's commandment to establish courts throughout the Land of Israel: every city that is large enough is obligated to have a court, and in addition to this, there is a regional court for each tribe. These are courts of twenty-three, which judge capital cases. The Mishnah teaches that the authority to appoint the judges serving in these courts, to oversee the process, and to approve those worthy of this, is given to the Great Sanhedrin.
"Ein osin ir hanidachas ela al pi beis din shel shivim ve'echad" - We do not declare an ir hanidachas except by the directive of the court of seventy-one:
An ir hanidachas (subverted city) is a unique case: a city that is large enough, whose population exceeds one hundred, but is not too large - it does not comprise the majority of a tribe, rather members of one tribe reside there - and the majority of its residents turned to idolatry. Hence its name: a city that was subverted to idolatry. Its special law is that it is judged as a whole, as a subverted city, and not as individuals. Even here, if the city is found guilty - meaning that it is found that the majority of its residents worshipped idols - we do not put to death those who did not worship, but only the actual worshippers. The decision, nevertheless, is given to a court of seventy-one.
It is further stated regarding an ir hanidachas that all the property of the city is gathered into the city square and burned, and the city itself is burned to the ground and is forbidden to be rebuilt ever again. Thus, the residents who did not sin are innocent of the crime in that they did not worship idols, but they are not entirely innocent, for they continued to reside in a city whose majority were idol worshippers - and therefore they lose their property. However, their lives are not taken from them: they move and settle elsewhere, while their city is burned to the ground and is not rebuilt again.
"Ein osin ir hanidachas basfar... velo shalosh" - We do not declare an ir hanidachas on the border... nor three:
We do not declare a city as an ir hanidachas if it is a border city, adjacent to the border of another country and to enemy territory. The source of this law is in the verse: "Scoundrels have emerged from your midst" - specifically "from your midst," from within the Land, and not on its border. The Gemara explicitly explains the reason for this: an ir hanidachas is destroyed to the ground, no one lives in it, and it is not rebuilt. If such a thing were done on the border of the Land, it would be like handing over land to the neighbors: they would notice that this is an unprotected area and infiltrate inside, resulting in the loss of territories from the Land of Israel and endangering Jewish lives.
There is an additional limitation on the number of cities in a single region: we do not designate three condemned cities. This means that a single Sanhedrin is not permitted to declare three cities in one of the primary regions of the Land of Israel. The three primary regions are: the North - the Galilee; the South - Judea; and the East - Transjordan. In any one of these, a Sanhedrin may not designate more than two, for if the condemned cities were to multiply, the land would become desolate.
The novel point here is that one or two are permitted even when the two are very close to each other, creating a single, continuous desolate area. One might have thought that this is forbidden, as it creates a large, desolate clearing in the heart of the Land of Israel - but in practice, it is permitted. One or two may be designated in a specific region, in any of the three regions, but no more than that during the tenure of that particular Sanhedrin.
In summary: In this Mishnah, we learned the list of cases entrusted to a court of seventy-one: judging a tribe whose majority committed idolatry, a false prophet, a kohen gadol in capital cases, going out to an optional war, expanding the city and the courtyards, appointing Sanhedrins for the tribes, and declaring a condemned city. The unifying principle behind all of these is that any matter affecting the entire nation or a large portion of it is entrusted to the Great Sanhedrin. We also noted that for an optional war and for altering the borders of the city and the courtyards, the approval of the Sanhedrin alone is insufficient, rather additional approvals are required - the king, the prophet, and the Urim and Tumim - and we discussed the restrictions regarding a condemned city: we do not designate one in a border region, and we do not designate three in a single region.