More Discussions for this daf
1. Go'el ha'Dam in an Ir Miklat? 2. The Go'el ha'Dam and Eidim Zomemim 3. Rotze'ach In Mid-Air Over the Ir Miklat
DAF DISCUSSIONS - MAKOS 12

Baruch Robinson asked:

Dear Members of the Kollel, shlita

The following shayla was asked by one of the members of the Daf Yomi shiur during an overview of Maseches Makos and it relates issues from the first and second Perakim.

The situation is a simple one. Two Edim come and testify that Reuven committed murder. Based on their testimony, Beis Din executes Reuven. After Reuven is executed, two other Edim come and say "Imanu Hayisem" to the first Edim, thus rendering them Edim Zomemim. However, as we learned in the Mishna in the first Perek, we cannot do anything to the Zomemim because "Hargu, Ein Neheragim".

The question is: Can the Go'el HaDam of Reuven kill the Edim Zomemim?

Thank you.

Baruch Robinson

Cong. Or Torah

Skokie, IL

The Kollel replies:

This is a fascinating question and I have thought about it quite a lot in the last couple of days and spoken about it to a few Talmidei Chachamim near where I live.

(1) It seems to me that according to the explanation of the Ramban on the Torah (Devarim 19:19) the Go'el Hadam cannot kill the Edim Zomemim. Ramban explains the reason for the Halachah of "Hargu, Ein Neheragin". When 2 Edim testify that Reuven murdered and afterwards 2 other Edim testify that the first 2 were with us in a different place at the time of the murder and therefore they could not possibly have witnessed it, Ramban writes that the reason the Torah commands us to believe the second set (even though logically speaking one should say that this is a case of 2 against 2 and there is no reason to believe the second set more than the first :- see Bava Kama end 72b) is because the fact that Reuven was saved in this way, shows us that he must be innocent, because the Torah states that Hash-m says (Shmot 23:7) "I will not acquit the guilty".

(2) However, if Reuven was put to death by the Beis Din, we must now think that what the first 2 Edim said was all true. If Reuven would really have been innocent, Hash-m would not have abandoned him to the hands of the first Edim as the Pasuk states (Tehilim 37:33) "Hash-m will not leave him in his hands and will not indict him through his judgment". Furthermore Hash-m would not allow the righteous judges to spill innocent blood as is said (Devarim 1:17) "For the judgment belongs to Hash-m".

(3) I think we can summarize the Ramban's interpretation by saying that there is a special Siyata di'Shmaya that rests with the Sanhedrin of Hash-m. In this case of 2 against 2 (which according to human logic is a scenario where we cannot be certain what the truth of the matter is) we believe that if Reuven was killed by the righteous Beis Din, this must mean that he really was guilty and the first 2 Edim really were right. According to this it does not seem that there is justification for the Go'el Hadam to kill the Edim.

(4) One might challenge the above analysis on the basis of what the Ritva writes above 2b end of DH Teda, that even though the Halachah is "Hargu, Ein Neheragin" nevertheless one believes the second set of Edim rather than the first (even though one cannot go so far as killing the first set). See also Minchas Chinuch Mitzva 524:4 DH v'Efshar who writes that even though we say Hargu Ein Neheragin, nevertheless the first set of Edim receive lashes for their testimony which was contradicted . This would therefore appear to suggest that Ritva and Minchas Chinuch disagree with the Ramban?!

I would like to argue that in fact there is no dispute between Ramban and between the Ritva and Minchas Chinuch. We can say that Ramban agrees that the first Edim were liars, but the solution is that the executed criminal was really culpable to the death penalty for some other serious crime he had committed but which no one had caught him for. This was the help from Heaven that the Sanhedrin possessed that did not enable them to put to death an innocent person. However even though the first Edim were liars they are not put to death because they were trying to kill a person who deserved death for a different reason, so they were merely attempting to kill a "Gavra Ketila" - a "dead person" and therefore are exempt.

(5) This can be compared to what the Ritva (5b DH Tosfos) writes that the person who Rabbi Yehudah Ben Tabai put to death in conflict with the Halachah was in reality guilty of this punishment for some other offence he had committed because otherwise Hash-m would not have allowed the Tzadik R. Yehudah Ben Tabai to stumble on this. He compares this to the Gemara Bava Metzia 83b which relates that Rabbi Elazar b'Rabbi Shimon inadvertently caused the death of an arrogant person. He was very anguished at what he had done but he was then told that this person had relations with a Na'ara Me'orasah on Yom Kippur and therefore deserved the capital punishment. Again, we learn that Hash-m does not allow the Tzadikim to err and gives their decisions a special protection.

(6) In summary, it seems that since the Ramban writes that the Torah promises us that the action of the Sanhedrin was correct even though the first set of Edim were disproved ,it follows that the Go'el Hadam may not pursue Edim who caused a guilty criminal to die.

(7) A few Talmidei Chachamim also pointed out that the question of whether the Din of Go'el Hadam applies to Retzichah by Grama should also be considered

(8) A lot more could be written on the above subject and many further sources and Sevarot could be cited. In fact I think we might need the Sanhedrin itself to answer a question as difficult as the one you have posed, but I have at least attempted to show a way of approaching this very important question

Kol Tuv,

Dovid Bloom