Siman 18

If the litigants brought witnesses, they bring the witnesses in and receive their testimony in the presence of the litigants, as has been explained in siman 28. After they have received their testimony, they shall command that the witnesses and the litigants go outside so that they do not hear who is the one who acquits and who is the one who convicts, and also so that they do not hear the deliberation of the judges and learn from their words to plead some falsehood. The judges then deliberate on the law. It is good that the youngest of the judges begins to state his opinion first, for if the greatest states his opinion first, we fear perhaps the younger ones will not find strength in themselves to disagree with him and the law will not be clarified well. After they have deliberated on the matter, if they do not agree to one opinion, we follow the majority of the judges, as it is written: "to incline after the majority." Even though the third is much greater in Torah than the two against him, and he is also sharper, nevertheless we follow the majority since they hear his reasoning and disagree with him [see Yevamot 14a, and study it well]. Therefore, when two say "innocent" and one says "guilty," he is innocent; and similarly when two say "guilty" and one says "innocent," he is guilty. This is a positive commandment of the Torah, as it is written: "to incline after the majority," and we extract money by means of this majority. Even though in matters of money we do not follow the majority, nevertheless the Torah nullified this minority, for it nullified his opinion and he is considered as if he does not exist; but in every other place where there is a majority and a minority, the minority perforce exists [Tosafot at the beginning of "HaMeniach"]. If one of the judges says "I do not know," he is considered as if he is not there, as has been explained at the end of siman 13. Nevertheless, if he says his opinion later, we accept it in monetary laws. Therefore, when the two remaining judges need to add to the place of the judge who said "I do not know," they shall add two judges, and one is not sufficient because perhaps the one who withdrew will also say his opinion later, and there will then be four judges and there is no balanced beit din. Therefore they add two, and now they will be five together. Even though he now says "I do not know," nevertheless it is likely that through the increase of judges his opinion will also be renewed and he will join in the judgment, and it is better that the judgment be finished with five than with three. These five judge together, and if three say thus and two say the opposite, we follow the majority. Even if the two say "we do not know," we are not concerned about this, since there are three who state their opinion, and from the beginning they only seated three, this is sufficient. But if two say thus and two say the opposite and one says "I do not know," or even if two say "innocent" and one says "guilty" and two say "we do not know," such that there is no majority against those who do not know, they shall add more. The addition is up to seventy-one, corresponding to the Great Sanhedrin, and more than this they do not add. If even among these half acquit and half convict and one says "I do not know," and it is not possible to tip one of them from this side to that side, the money remains in doubt and they leave the money in the possession of its owner. So too in every place where there is no decision, such is the law, and it is not possible to extract it from the hand of the one in possession. It appears to me that if it is the will of the litigants to add only one judge and to remove from the judgment this one who said "I do not know," the authority is in their hands. It is specifically when the judges add that they must add two for the reason that has been explained, but not the litigants. The judge who says "I do not know" does not need to give a reason for his words as to why he does not know and where the place of his doubt is. It has already been explained at the end of siman 13 that it is forbidden for a judge to say "I do not know" when he does know and he does this for the benefit of one of the litigants, unless he does so for the sake of Heaven, such as if he sees that the two are perverting the judgment and if he states his opinion against them they will rule like them by the majority; therefore he says "I do not know" in order to add judges so there will not be a perversion of justice, for in such a case it is a mitzvah upon him to do so. Similarly, if he sees that by his saying "I do not know" the judgment will emerge more truthfully, then he is permitted to say so, and the Searcher of Hearts knows for what reason he says so.

That which has been explained, that when they added two judges and they became five and two said "we do not know" that they conclude with three, this is specifically because initially only three sat, as I have written. However, if at the beginning of the judgment five or ten sat, this is not sufficient, and it is necessary that all five or all ten state their opinion for liability or for acquittal, and among them we follow the majority. But when there is one of them who says "I do not know," they must add judges until the judgment is concluded according to the number that sat previously, and that this number states their opinion, and among them we follow the majority [Sma and Acharonim].

And that which has been explained, that when one says "I do not know" the judges must add, the same applies even if he does not say "I do not know," but rather he withdrew from them after he deliberated with them. And even if he withdrew at the conclusion of the judgment, and until the conclusion he was of one mind with them, and his withdrawal is not because he does not wish to sit in judgment but because of another matter, that he was preoccupied with some affair of his own and has no leisure to sit at the conclusion of the judgment; nevertheless, the judges must add. And the reason is that we fear perhaps if he were present at the conclusion of the judgment, he would see a reason to contradict the previous judgment, and they might possibly have agreed with him. Therefore, it is forbidden to conclude the judgment with fewer than the number that sat at the beginning of the judgment [Urim VeTumim and Netivot HaMishpat]. And all this is without the consent of the litigants, but with their consent they are permitted to conclude even with fewer than the previous number [it appears to me].

We have already explained in siman 12, section 15, that in a pesharah we do not follow the majority. And similarly, in the rulings of laymen or in communal matters where selectors were chosen to state their opinion, all of them must agree. And if they did not all reach a consensus on one opinion, one does not extract from the possessor, just as in every case of monetary doubt where we grant the leniency to the defendant, for the burden of proof is upon the claimant. Therefore, if it is their desire that they follow the majority, they must stipulate before their session regarding this matter that they will follow the majority of opinions. And if one of them withdrew, the selectors do not have the power to add mediators or selectors themselves as in a din, but rather they require the consent of the litigants, for this is not a Torah law, and they can say regarding these new ones, "we do not wish to rely upon them." Nevertheless, the selectors sitting on this matter may ask their doubt to whomever they wish without asking the litigants and rule based on them; for since they relied upon them, what is it to the litigants from where they took their rectitude to rule thus and so? This is not the case regarding seating others in their session, where they require the consent of the litigants, for perhaps it is not pleasing to them.

In the Gemara [Sanhedrin 36a] we say that when a teacher and his student sit in judgment, they are counted as only one, because the student is drawn after the reasoning of his teacher. However, this is only at the time that he is teaching him the law, for then he relies upon him completely; but if it is not at the time of his teaching, they are counted as two, and only in a case where the student knows how to deliberate in the law. And even at the time he is teaching him, if he is not a complete student but rather a student-colleague, who for his reasoning needs only his learning to receive from him halakhot, they are counted as two. All this is regarding civil laws, capital laws, lashes, and the intercalation of the year and the month; but for forbidden and permitted matters and matters of impurity and purity, they are counted as two in every case, because the essence of their instruction is by an individual, and specifically when he knows at least how to deliberate. But when he does not know, his opinion is considered as nothing. And such is the law regarding a father and his son, except that in civil laws and capital laws it is impossible for them to sit together, for relatives are disqualified from sitting together in judgment. And it is stated in the Tosefta [Chapter 7 of Sanhedrin] that the son should not sit at all by his side at the time of judgment even if he is not judging with him, so that it does not appear that they are judging together, but rather he stands and goes on his way. The Rambam, of blessed memory, [Chapter 11 of Sanhedrin] equates civil laws to impurity and purity, and he had a different version of the text in the Gemara and Tosefta. And a student who is a sage but lacks the tradition, behold his teacher transmits to him the tradition that he needs for this judgment and he judges with him in capital laws [Rambam], and all the more so in civil laws.

To state the verdict, the beit din may do so even not in the presence of the litigants, since they have already argued before them. And then, even when the two litigants did not come to hear the law, they may write the verdicts and deliver them to the party requesting the verdict; and see in siman 13, section 11.

How is the deliberation in capital cases conducted during the time of the Temple? The Rambam, of blessed memory, wrote in the ninth chapter of Hilkhot Sanhedrin: If they all opened in a capital case first and said "guilty," he is exempt, until there are some among them who acquit, who would argue for his merit, and then the majority who convict would increase, and afterwards he would be executed. Thus far his words. And the reason is because in all capital cases, they do not conclude the verdict on the same day for conviction, but rather on the following day, as it is written, "righteousness lodged in it," and perhaps they will find merit for him. And since they all judged him for conviction, they certainly will not see merit on his behalf, and one must not execute a soul without searching for merit, for through the debate the law is clarified to its truth, as it is written, "and the congregation shall judge and the congregation shall save"—a congregation that judges for conviction and a congregation that saves for merit, as I wrote in siman 3, section 18. And we do not require a complete congregation that saves, for even if only one judged him for merit and all the rest for conviction, there is here a debate, a delay of the verdict, and a search for merit. We only require initially to seat judges so that there will be a congregation that saves, as I wrote there, but at the time of deliberation, we are not exacting in this. And that which the Rambam, of blessed memory, wrote, "that they all opened for conviction," his intention is not literally in the opening, for it is forbidden to open in a capital case for conviction, as will be explained in section 10; rather, he means to say that at the time of deliberation, they all judged him for conviction.

Also in dinei nefashot, we follow the majority of opinions; however, for a conviction, one does not decide the matter until there are two more than those who acquit. This is what the Torah warned: "Do not follow a multitude to do evil," meaning if the majority incline toward evil, to kill, do not follow them until they incline with a significant inclination of two. And this is what is said: "to incline after a multitude to pervert [judgment]," meaning that for evil, the inclination must be from a multitude and not from a mere majority, unlike your inclination for good; your inclination for evil—for good, one is sufficient, and for evil, we require two. All of this comes from tradition. Therefore, in a Sanhedri Ketannah that disagreed in dinei nefashot, where twelve say "innocent" and eleven say "guilty," he is innocent. But when eleven say "innocent" and twelve say "guilty," or if eleven say "innocent" and eleven say "guilty" and one says "I do not know," and even if twenty-two acquit or convict and one says "I do not know," they add two judges. For this one who said "I do not know" is as if he is not there, and he may not return and teach a liability, but as for merit, it is in his power to return and teach [from our teacher, the Beit Yosef, in Kesef Mishneh and Tosafot Sanhedrin 33b]. Thus, after the addition, there are twenty-four besides this one who is in doubt, and they stand for the count. If twelve said "innocent" and twelve "guilty," he is innocent, even though there is no inclination here, for with those added, one does not need an inclination for good because the number of judges after the addition is even. And if eleven acquit and twelve convict, he is guilty, because there is an inclination for evil by two. And if the addition was because eleven said "innocent" and twelve "guilty," and when they added two they became twenty-five, their law is as when they were twenty-three. Therefore, if twelve acquit and twelve convict and one says "I do not know," they add two more judges. And that which we said, that with those added one does not need an inclination for good, this is when after the addition they all expressed their opinion. Therefore, when after the addition their number was twenty-five, it is necessary that they all express their opinion, and if one of them says "I do not know," they need two others in their place, and the number will be even, and the law returns that half-and-half is innocent, for the previous one who withdrew is not in the count. In this manner, they continue adding up to seventy-one. The general rule of the matter is that initially we do not establish a balanced beit din, so that there will be an inclination for good by one, and the inclination for evil must necessarily be by three, for by two you cannot find it in a number that is not even [Sanhedrin 17a]. And since we hold that an inclination for evil must be by two, it is necessary when one says "I do not know" to add two so that there will be an even number and there can be an inclination by two. Therefore, even when eleven say "innocent" and twelve "guilty," although the addition of one would have sufficed, nevertheless, since with "I do not know" they must add two, they add two in this case as well. Furthermore, in this it is certainly better to add two so that there will not be a balanced beit din. And if they reached seventy-one, they do not add more. Therefore, if thirty-five say "guilty" and thirty-six "innocent," he goes out innocent. And if thirty-six say "guilty" and thirty-five "innocent," these argue against those until one of them sees the words of his fellow and they acquit or convict him. And if they stood by their opinion, the greatest of the judges says, "The judgment has aged," meaning they have already deliberated on it as much as possible, and they release him. And if thirty-four say "innocent" and thirty-seven "guilty," he goes out guilty. And even if thirty-six say "guilty" and one says "I do not know," he is guilty, since there is an inclination of two, and there is no obligation to add beyond seventy-one, for even in the Beit Din HaGadol they do not add, but rather these argue against those as I have written. And this applies both in dinei galut and in dinei mamonot and ohel [so it appears to me to explain the Mishnah in the fifth chapter of Sanhedrin and the words of the Rambam in the ninth chapter of Sanhedrin. And that which he wrote, "and so they continue adding until they increase etc.," means when one of the added ones says "I do not know," and so wrote the Lechem Mishneh. And that which he wrote, "if these were against those and one says I do not know etc.," that is when eleven said "innocent" and twelve "guilty" and they added two, as I have written; and the difficulty of the Ra'avad is answered, and our teacher, the Beit Yosef, was pressed in this, see there. And perforce one must say so in his previous words. And that which he wrote that they do not add beyond seventy-one, he means there is no obligation, but if they wanted they could, as is proven from the beginning of Horayot, or perhaps one can distinguish between a ruling and a judgment; see there in Mishneh LaMelech and reflect on it].

The Rambam, of blessed memory, wrote in the tenth chapter of Sanhedrin: One of the judges in capital cases who was among those who acquit or among those who convict, not because he said something that appeared correct to him in his own mind, but rather he inclined after the words of his colleague, behold he violates a negative commandment. And regarding this it was said: "And you shall not respond in a dispute to incline"; from the tradition they learned: do not say at the time of the count, "It is enough that I should be like so-and-so," but rather say what is before you. Thus far his words. And it is implied from his words that in monetary cases one may rely on his colleague or on one greater than him. And behold, this is certainly so: that when he does not hear and understand the reasoning of his colleague, but rather says "I agree with what so-and-so says," even in monetary cases it is forbidden, for he is not a judge at all in this. Rather, this is the explanation: that in monetary cases, when he hears the reasonings of his colleague and they are upright in his eyes, he is not obligated to investigate for himself the depth of the law. But in capital cases, he is obligated at the outset to investigate and establish for himself all the details of the law, and afterwards when he hears the reasonings of his colleague, he will either nullify his opinion to his colleague because the reasonings of his colleague appear more correct to him than his own reasonings, or he will debate with him. And so it is implied in the Tosefta, the third chapter of Sanhedrin, which says there: "Do not say at the time of the judgment, 'It is enough for the servant to be like his master'; say what is in your mind." Thus far his words. Behold, it is because of the nullification of his opinion; but in monetary cases, he is permitted to nullify his opinion when he hears the reasonings of his master and his colleague, and he does not need to investigate further for himself. (So it appears in my humble opinion; and our teacher, the Beit Yosef, did not show his source, and the Minchat Chinuch brought it from the Mechilta, and it is not in the Mechilta before us, and it appears to me that from this Tosefta he took this law).

There are many distinctions between dinei mamonot and dinei nefashot: dinei mamonot are judged by three, dinei nefashot by twenty-three. In dinei mamonot, they open for the litigant with investigations of the claims, whether for merit or for liability; but in dinei nefashot, they open only for merit and not for liability. And how do they open for merit? They say to the sinner: "If you did not do this thing that the witnesses say about you, do not fear their words" [Sanhedrin 32b]. And in the Yerushalmi it is stated that they say among themselves: "Is it possible that this person killed a soul?" And as for the fact that they do not open for liability, even though in the essence of the law there is no practical difference in this, nevertheless, the opening of the mouth of the beit din should be for the merit of a person, and furthermore, so that he may strengthen himself to find a way to contradict the witnesses and the like. But in dinei mamonot, "merit" and "liability" are not applicable, for what is merit for this one is liability for the other. In dinei mamonot, they incline the law based on one who tips the balance to the majority, whether for merit or for liability; but in dinei nefashot, they incline based on one for merit and based on two for liability. In dinei mamonot, when the beit din sees that they erred in the law, they reverse the judgment even after the verdict, whether for merit or for liability; but in dinei nefashot, they do not reverse when they erred unless they ruled for liability and now see that there is grounds for his merit, but from merit to liability they do not overturn the judgment. In dinei mamonot, everyone is fit to argue for merit or liability, whether the judges, the students, or the witnesses; and in dinei nefashot, everyone argues for merit, even students, except for witnesses, as written in siman 7, but for liability none argue except the judges themselves, and not students, and certainly not other people. In dinei mamonot, any judge can retract his opinion as long as he sits in judgment, from merit to liability and from liability to merit, when he sees a contradiction to his previous reasoning; but in dinei nefashot, one who argues for liability may retract and argue for merit, but one who argues for merit cannot retract and argue for liability during the entire time of deliberation, so that he may exert himself to find merit. However, at the time of the final verdict, when he sees that his reasoning for merit cannot be sustained, there is no favoritism in judgment, and he must retract and be counted with those who convict. And similarly, that which was explained—that in dinei nefashot they do not overturn the judgment from merit to liability—this is specifically when they erred in a matter that is not explicit in the Torah, meaning a matter that the Sadducees do not admit to; but in a matter that the Sadducees admit to, they reverse the judgment and put him to death for the sake of publicizing it to the world. How so? For example, if they judged regarding one who came upon a forbidden relation in an unnatural manner that he is exempt, and they acquitted him, they reverse this, for "the lyings of a woman" is written, and it is known to all that the verse equated unnatural intercourse to natural intercourse. But if they judged regarding initial contact in an unnatural manner that he is exempt, they do not reverse it, for according to the plain meaning of the verse, one could say it was only equated regarding the completion of the act, even though the truth is not so; and so too in all similar cases [the Rambam there]. Dinei mamonot are judged by day and concluded even at night, as written in siman 8; and dinei nefashot are judged by day and concluded also by day, as it is written: "And hang them up before Hashem against the sun," for even the hanging, which is after the final verdict, must be by day. Dinei mamonot are concluded on that same day, whether for merit or for liability; and dinei nefashot are concluded on that same day for merit, but for liability they do not conclude on that same day, as it is said: "Righteousness lodged in it," and they delay the judgment overnight perhaps they will find a side of merit, and on the morrow, when they have not found merit, they conclude for liability. Therefore, they do not judge dinei nefashot according to the Torah on the eve of Shabbat or the eve of Yom Tov, lest he be found liable and they will need to perform a delay of judgment until the morrow, and on the morrow it is forbidden to kill him because of the desecration of Shabbat or Yom Tov, and they would leave him until Sunday, and it is forbidden to afflict his judgment; therefore they imprison him until Sunday and then begin his trial, for before the final verdict there is no "affliction of judgment" since he does not know for certain that it will conclude with his liability. And dinei mamonot are permitted according to the Torah to be judged on the eve of Shabbat or the eve of Yom Tov, as written in siman 5, but with the consent of the litigants it is permitted to judge even by rabbinic law, as written there. And in all that has been explained, there is no difference in dinei nefashot between those liable for death, those liable for lashes, or those liable for exile, except that those liable for lashes are judged by three, as written in siman 3, section 18. And regarding an ox that killed, or a bestiality case, all these laws do not apply to it, except that it is judged by twenty-three, as written there. And one who incites to idol worship, his law is not like other transgressors: he does not require a warning, they do not search for merit for him, and they hide witnesses against him; and if he emerged innocent from the beit din and one said "I have something to argue for his liability," they bring him back, but they do not argue for his merit, and they do not bring him back for his merit. And they seat in his judgment an elder, a eunuch, and one who has no children, so that they will not have mercy on him, because cruelty toward those who mislead the people after vanity is mercy in the world, as it is said: "So that Hashem may turn from His fierce anger and grant you mercy." And similarly in dinei mamonot they seat an elder and a eunuch [Yerushalmi, chapter 1 of Sanhedrin] because in dinei mamonot there is no "merit" and "liability" [and the reason this was not counted in the Mishnah of "all are equal" is because it does not deal with the quality of the judges but rather with the quality of the laws and the quantity of the judges].

If one of the judges said, "I have a point to argue in his favor," and became mute or died before he stated the reasoning for the merit, he is as if he does not exist. However, when he stated the reasoning and then became mute or died, we count him as one who acquits regarding the joining of opinions, and we do not say perhaps he would have retracted had he not died or become mute. And even one of the students who was acquitting and died, since he stated the reasoning, we count his opinion with those who acquit. But for conviction, we do not join a judge who died even if he stated his reasoning. And in monetary laws as well, we do not join one who died in the middle of the judgment even if he stated his reasoning, for there is no "merit" and "guilt" here [and that which he did not count this in the Mishnah of "monetary laws" is because it is an uncommon matter].

The Rambam wrote in chapter 10: Two who stated one reasoning, even from two verses, are counted only as one. Thus far his words. It is implied from his words that this is certainly so if they stated it from one verse. And it is a wonder, for if so, when many of them agree with one another in their reasonings, they would be counted only as one, and according to this, it is remote in reality that any judgment would ever be finalized. In the Gemara [Sanhedrin 34a] they only said this when they stated one reasoning from two verses, because we have a tradition that one reasoning does not emerge from two verses, as it is written, "One thing God has spoken, these two have I heard"—one verse emerges into several reasonings, but one reasoning does not emerge, etc. Therefore, when two say one reasoning from two verses, it is necessary that one did not intend according to the law; therefore, we count for them only one. Rashi explained likewise. But if they say the same, why should they be counted as one? Is every individual forced to say a different reasoning? [And this is the intention of the Ramak which our teacher, the Beit Yosef, cited, and his words require further study]. It must be said that he holds that when there is a debate between those who convict and those who acquit, where these state reasonings why they acquit and those state why they convict, when there are more reasonings on one side than on the other side, they are called the majority. This is specifically when they have no way to refute the reasonings of the other side, but they also have reasonings according to their logic; for then, even though "these and those are the words of the living God," nevertheless the Torah decreed "to incline after the majority," and the majority are those who have more reasonings. But when they are able to refute the reasonings of the other side, and the other side refutes their reasonings, and each one stands by his logic and they do not accept the refutations of the other side, we certainly follow the majority of opinions even though they all have one reasoning. [So it appears to me in my humble opinion; and one cannot say that his intention was "certainly from two words from one verse," as is proven from chapter 12, halacha 3, see there and examine carefully].

The Rambam, of blessed memory, wrote: From the oral tradition they learned that one does not begin in capital cases from the greatest, lest the rest rely on his opinion and not see themselves as worthy to disagree with him; rather, each one shall say the matter as it appears to him in his own mind. Thus far his words. And so he wrote in chapter 11: Monetary cases and matters of impurity and purity begin from the greatest of the judges and they listen to his words, and capital cases begin from the side and they do not listen to the words of the greatest until the end. Thus far his words. And his intention is not that in monetary cases and impurity and purity there is an obligation to begin from the greatest, for certainly it is better to begin from the small ones as I wrote in section 1, for even in these there is a concern lest they not see themselves as worthy to disagree with him; rather, in other laws the sages were not concerned for this due to the honor of the greatest. However, if the greatest waives his honor, it is better not to begin from him, and our holy teacher never stated his opinion first [and according to what I wrote, the intention of the Ra'avad, of blessed memory, is understood, see there].