Parshas Shoftim
1. In Hilchos Sanhedrin1, the Rambam rules: "סנהדרין שפתחו כולם בדיני נפשות תחלה ואמרו כולן חייב הרי זה פטור עד שיהיו שם מקצת מזכין שיהפכו בזכותו וירבו המחייבין ואחר כך יהרג" ("A Sanhedrin who all opened a capital case at the outset and all said 'guilty' — he is exempt, until there are some there who argue for merit, who turn [the case] in his favor, and those who find him guilty are the majority; and afterwards he is executed").
The source of the Rambam's words is the Gemara in Sanhedrin2, which reads: "סנהדרי שראו כולן לחובה פוטרין אותו מ״ט כיון דגמירי הלנת דין למעבד לי׳ זכותא והני תו לא חזו לי׳" ("A Sanhedrin who all saw [the case] for guilt exempt him. What is the reason? Since we have a tradition of the deferral of judgment, in order to find merit for him, and these will no longer see [merit] for him")3.
The fact that the Rambam says "who all opened a capital case at the outset and all said 'guilty'," changing from the Gemara's wording "who all saw for guilt," is simply in order to explain further (as is the way of the later authorities in general4): what the Gemara says briefly, "they all saw for guilt," means "they all opened . . at the outset and all said 'guilty'"; that is, right at the beginning of the trial5 the judges had no line of reasoning toward merit, but immediately at the outset "they all said 'guilty'"6.
It is also understood why the Rambam omits the reason for the matter stated in the Gemara, "What is the reason? Since we have a tradition, etc., and these will no longer see [merit] for him" — because it is not the way of the Rambam to bring the reasons of the laws in his work7.
One must, however, understand the continuation of the Rambam's words — "he is exempt, until there are some there who argue for merit, who turn [the case] in his favor, and those who find him guilty are the majority; and afterwards he is executed":
a) Since this halachah is an introduction and foundation to the general content of the chapter — the definition of what is called a majority for guilt and a majority for merit — the Rambam should seemingly have begun with the main point, the conclusion of the halachah: that liability in capital cases is (specifically) when "there are some there who argue for merit, who turn [the case] in his favor, and those who find him guilty are the majority, etc.," and only afterwards conclude, "But a Sanhedrin who all opened a capital case at the outset and all said 'guilty' — he is exempt."
b) Since the Rambam states here the side of exemption, when "they all said 'guilty'," and the side of liability, when "there are some there who argue for merit, who turn [the case] in his favor, and those who find him guilty are the majority," the Rambam should have said and concluded (not "and afterwards he is executed," but) "and afterwards he is liable"8 (or the like), in correspondence (contrast) to "he is exempt."
2. This will be understood by first explaining the Gemara's reason, "Since we have a tradition of the deferral of judgment, in order to find merit for him, and these will no longer see [merit] for him," which can seemingly be learned in two ways:
a) The main point is the deferral of judgment (and "in order to find merit for him" is merely the reason and explanation why there must be a deferral of judgment). That is, the fact that "they exempt him" is because if "they all saw for guilt," there is no possibility of fulfilling one of the conditions that apply in a case where they did not find merit for him9 — the condition that "(there must be) a deferral of judgment."
b) The reason and cause of the exemption is the fact that "these will no longer see [merit] for him," and "the deferral of judgment" is only a matter that leads to that cause.
That is, the fact that "they exempt him" is not because in this case the court cannot fulfill one of the conditions, but because, since "they all saw for guilt," "they will no longer see (merit) for him" (and consequently there is lacking here "ושפטו העדה והצילו העדה" ("the congregation shall judge . . and the congregation shall save")10 — "a congregation that saves"11); and such a court, which cannot see merit, is not in the category of [a court that can] convict — and therefore "they exempt him."
In other words: according to the first way, this is a "deficiency" that pertains to the ruling of the Sanhedrin — there cannot be a proper court ruling (because the fulfillment of the condition of the deferral of judgment is lacking)12; according to the second way, this is a deficiency in the persons issuing the ruling — the Sanhedrin
[similar to "a Sanhedrin who saw someone kill a person," who cannot become judges (according to Rabbi Akiva), "for the Torah says, 'the congregation shall judge and the congregation shall save,' and since they saw him kill a person, they cannot see merit for him"13 — the meaning is not that their ruling is incorrect, but that they are not called a Sanhedrin with regard to the person whom "they saw . . kill a person"14].
3. From the Gemara there is room to prove both the first way and the second way:
A proof for the first way can be inferred from the fact that the Gemara explicitly cites only the law "since we have a tradition of the deferral of judgment," and not the source of the law that one is obligated to seek merit for the accused15; and especially since the Gemara does not state the reason (as in the above-cited Gemara regarding "a Sanhedrin who saw someone kill") "for the Torah says, 'the congregation shall judge and the congregation shall save.'" This implies that what is chiefly relevant here is that the law of the deferral of judgment cannot be fulfilled.
But on the other hand — from the fact that the Gemara does not suffice with stating only the law "since we have a tradition of the deferral of judgment," but adds the reason "in order to find merit for him" and concludes "and these will no longer see [merit] for him"16 — it is implied that the main deficiency is in "these," in the fact that "they will no longer see (merit) for him"17, as in the second way.
[Moreover: specifically according to the second way, the Gemara's wording "a Sanhedrin who all saw for guilt" is precise; that is, the deficiency here is that their seeing is only for guilt, and therefore they cannot see his merit (similar to the above regarding "a Sanhedrin who saw someone kill a person").]
Based on this, one may say that there can also be a practical legal difference: according to the first way, that it is a deficiency in the ruling of the court, it would follow that if the court afterwards finds a line of reasoning toward merit, there is room to say that they can once again18 judge the accused19;
whereas according to the second way, since they are not in the category of a Sanhedrin (with regard to this person) because "they all saw for guilt," it stands to reason that they can no longer judge the accused — even if they afterwards find merit for him.
4. From the Rambam's words it is implied that he does not learn [this law] according to either of the above two ways:
Although it is not his way to bring the reasons of the laws, nevertheless, had the Rambam learned that the deficiency is because the fulfillment of the condition of the deferral of judgment is lacking (as in the first way), it stands to reason that the Rambam would have mentioned it, since this is not merely a reason, but (also) a condition20.
And from the continuation of the Rambam's words it stands to reason that the deficiency is not (as in the second way above) in their lacking the ability to see merit (since "they all saw for guilt"21), but in the fact that there is lacking, in actuality, "(some who argue for merit who) turn [the case] in his favor."
That is: from the Rambam's wording, "he is exempt, until there are, etc., and afterwards he is executed," it is implied that this is not a deficiency in the persons issuing the ruling, in the Sanhedrin, but in the actual carrying out of the ruling upon the accused —
and therefore (a) the Rambam does not say "they exempt him" (which would emphasize that the exemption is bound up with the court and its ruling), but "he is exempt," which speaks of the accused, that he is exempt from death; and (b) for this reason the Rambam continues, "until there are, etc., and afterwards he is executed": through "some who argue for merit, etc." the possibility is created (not for the liability — "and afterwards he is liable" — but) for carrying it out in actuality — "and afterwards he is executed"*21.
5. To explain this, one must first preface:
There are commentators22 who explain the reason for the law "a Sanhedrin who opened, etc." as follows: since "they all opened . . and all said 'guilty'," this is evidence of a deficiency in the Sanhedrin, that their approach to the case was not correct (because "they revealed their intention . . that they all wished to execute him"23; or because24 for every accused one can find some side of merit — and since none of them found it, this is proof that they are not expert in the laws, or that they decided hastily and did not examine the case properly, and the like — with several explanations of the deficiency in the Sanhedrin).
Obviously, however, it is very forced to say so regarding a court in general, and all the more so regarding the Great Sanhedrin
[about whom this law speaks, as stated explicitly in the Rambam according to several versions25, and as is also understood*25 from the content of the law (for if this speaks of a Minor Sanhedrin of twenty-three, why "do they exempt him"? They should have judged him in another court26, until (if necessary) transferring the judgment and case to the Great Sanhedrin)] —
very forced, because even in a Minor Sanhedrin "אין מעמידין . . אלא אנשים חכמים ונבונים מופלגין בחכמת התורה בעלי דיעה מרובה" ("only wise and understanding men, outstanding in the wisdom of the Torah, possessors of great knowledge, etc., are appointed")27. How is it possible that among all of them there should not be a correct approach to the case, etc.28?!
And especially since it is evident from the Rambam's words, as mentioned above, that this is not at all a "deficiency" in the Sanhedrin or in their ruling, but everything pertains to the person being judged.
6. The explanation of this:
It is known that the punishments of the court — death, lashes, etc. — are chiefly for the sake of atonement. As is explicit regarding lashes29: "ונקלה אחיך לעיניך — כשלקה הרי הוא כאחיך" ("'Your brother shall be degraded before your eyes' — once he has been flogged, he is like your brother"). Similarly, it is stated30 regarding the death penalty that through it the one punished comes to the life of the World to Come [also as a matter of halachah, the Rambam rules31 that "כל מחוייבי מיתות ב״ד ומחוייבי מלקות אין מתכפר להם במיתתן או בלקייתן עד שיעשו תשובה ויתודו" ("all who are liable to death by the court or to lashes are not atoned for by their death or by their lashes until they repent and confess")32, from which it is understood that the purpose of death by the court or lashes is the atonement of the person, only that the atonement is conditional, "that he repent and confess"].
Based on this it stands to reason that in a case where death by the court will (can) not bring atonement, there is no room to carry out the death penalty. This is similar to how the Kesef Mishneh33 explains the Rambam's ruling34 regarding conspiring witnesses: "נהרג זה שהעידו עליו ואחר כך הוזמו אינן נהרגין מן הדין שנאמר כאשר זמם לעשות ועדיין לא עשה כו׳ אבל אם לקה זה שהעידו עליו לוקין" ("If the one about whom they testified was executed and afterwards they were proven to be conspiring witnesses, they are not executed by law, as it is stated35, 'as he conspired to do' — and he has not yet done, etc.; but if the one about whom they testified was flogged, they are flogged"). And he explains the reason for this distinction:
"דלא אמרינן כאשר זמם ולא כאשר עשה אלא היכא דהרגו על פיהם משום דגדול עונשם מנשוא אין ראוי לתת להם מיתת ב״ד שתכפר עליהם אלא ראוי להניחם שיהיו נדונין אחר מיתה בעונשים נוראים דוגמא לדבר נותן כל זרעו למולך שהוא פטור מה שאין לומר כן בהלקו ע״פ עדותם" ("We say 'as he conspired, and not as he did' only where they killed him on their testimony, because their sin is too great to bear; it is not fitting to give them death by the court, which would atone for them, but rather it is fitting to leave them to be judged after death with awesome punishments. An example of this36 is one who gives all his offspring to Molech, who is exempt37; which cannot be said when he was flogged on their testimony").
Similarly in our case: since (they all opened, etc., and all said —) a valid court, of which it is said "אלקים נצב בעדת א-ל" ("G‑d stands in the congregation of the Al-mighty")38, and all the more so the Great Sanhedrin in the Chamber of Hewn Stone, all immediately said "guilty," and there is not even a single one who argues for merit — this is proof that the accused is "גדול עוני מנשוא" ("[one whose] sin is too great to bear"): he finds himself in an extremely low state and condition, to the point that the punishment of death by the court cannot atone for him, and therefore "they exempt him."
This, however, is not entirely sufficient to explain the Rambam's wording, "he is exempt until, etc., and afterwards he is executed," from which it is implied that the Sanhedrin's ruling is a ruling, only that the accused is exempt — it cannot be carried out upon the accused (as mentioned above, section 4). But according to the above, the Sanhedrin that "all opened . . and all said 'guilty'" is saying that with regard to this person the liability (punishment) as atonement does not apply; that is, their ruling of "guilty" is not a ruling [and consequently, it would have been more fitting to use the wording "they exempt him" (as in the wording of the Gemara), which emphasizes that in this case the court cannot issue a ruling, because "his sin is too great to bear"].
7. One may offer a further explanation of this:
Every Jew, in whatever state and condition he may be, is — as the Rambam rules39 — even a Jew whom the court must compel to give a get to his wife, "הוא רוצה להיות מישראל ורוצה הוא לעשות כל המצות ולהתרחק מן העבירות" ("he wants to be part of the Jewish people, and he wants to fulfill all the mitzvos and to distance himself from transgressions").
And even regarding Achan, who was at the utmost depth of descent, our Sages say40: "אע״פ שחטא ישראל הוא" ("Although he sinned, he is a Jew").
The difference is only in the extent to which his "he wants to fulfill all the mitzvos" — the good of a Jew — is [OCR unclear] in revelation or in concealment. There are Jews in whom the good is utterly revealed, and there are Jews in whom it is not so revealed, until there are those whose good is entirely concealed. But some part of the concealed good ultimately comes to some revelation — for the good in a Jew is not an added thing41 upon his essence (like the matters (of evil) that come about because "יצרו הוא שתקפו" ("his evil inclination overpowered him")42); rather, it is the essence and the truth of his existence.
Accordingly it is understood that for every Jew, whoever he may be, even when he commits a transgression for which death by the court is incurred, there must be an argument for merit in his favor, because his true will, the truth of his existence, is the good within him43.
When, however, a Sanhedrin "all opened a capital case at the outset and all said 'guilty'," this shows that the good within him has become so concealed that even the Great Sanhedrin, who are "wise and understanding, outstanding, etc." — that is, they are "understanding," able to understand one thing from another44, and to an outstanding degree, to understand and grasp that which is hidden and not revealed — even all of them cannot find any merit for him
— regarding such a person it is said "he is exempt": since he certainly does possess good, only the court cannot "find" it because it is utterly concealed, therefore (the purpose of the ruling, and consequently also) the ruling of the court cannot be carried out upon him.
This is not a deficiency in the court or in their approach to the ruling — for the Torah said, "אין לו לדיין אלא מה שעיניו רואות" ("a judge has only what his eyes see")45, and everything that the Great Sanhedrin "אשר יהי׳ בימים ההם" ("that will be in those days")46 must and can see, they have seen;
but since the ruling of the Torah of truth is that he wants to fulfill all the mitzvos, that within him there is good (which has not been revealed), the court's ruling cannot take effect upon him — "until there are some there who argue for merit, who turn, etc."
One may say a further point: through this itself, the good that was previously utterly hidden and concealed also becomes revealed, and since it becomes revealed, the court's ruling can take effect upon him — and "they turn [the case] in his favor, etc."
More deeply: when can the court's ruling "he is executed" be carried out upon the Jew? Specifically after "there are some there who argue for merit, who turn [the case] in his favor," because, as discussed earlier (from the Kesef Mishneh), the content and purpose of the court's punishments is the atonement of the person. And when can a punishment bring atonement? Specifically when it touches (and reveals) the good within him.
Therefore, when all see only guilt, which means that the good within him is utterly concealed and hidden, the punishment ("he is executed") cannot effect atonement for the Jew;
only after they turn [the case] in his favor, which itself brings out the good within him, does the punishment accomplish its effect — that the Jew receives his atonement and merits the World to Come.
8. From this one derives a lesson regarding the greatness of the virtue and merit of the Jewish people:
Even when we are speaking of a Jew who finds himself in so low a state, to such an extent that even the Sanhedrin — of whom the Torah says that their role is "and the congregation shall save," to seek and find salvation and merit for every Jew — even they see only guilt in him and see no merit for him, nevertheless the Torah of truth rules a clear ruling that this is something that cannot exist; this Jew too has the will to fulfill all the mitzvos. Consequently, this itself brings about that the Sanhedrin argue for merit for this Jew, and through this47 one reveals the will within him, the good within him.
All the more so when we are speaking of Jews in our generation who, although they are in a state of "אני ישנה" ("I am asleep")48, nevertheless "לבי ער" ("my heart is awake") — to the Holy One, blessed be He, to His Torah and to His mitzvos49; and since the Jewish heart is, according to the ruling of the Torah of truth, awake, it ultimately becomes aroused and comes to revelation;
and especially as we are now in the time of the month of Elul, when the King (the King of kings, the Holy One, blessed be He) is "in the field"50, and "then all who wish are permitted (and able51) to go out to greet Him (in the field), and He receives them all with a pleasant countenance and shows a smiling face to them all" —
one must go out and influence every Jew, in whatever state he may be, that the "will" to greet the face of the King in the field should become revealed in him.
This effect comes about through this itself: when one turns [things] and speaks in favor of a Jew — that within him there is an actual part of G‑d Above, the G‑dly spark, to the point that, in the Rambam's words, "he wants to be part of the Jewish people, and he wants to fulfill all the mitzvos and to distance himself from transgressions," and that this is the truth of his existence — through this itself one reveals the good within him even more,
and one influences him to go out — "to go out" — from his place ("in the desert"52) in order to greet the King "in the field," through which there is revealed, beyond "some" of his good ("some who argue for merit, who turn [the case] in his favor"), his good in great measure, until the abundance of good and merits outweighs the opposite side in him, and outweighs the fact that he is "evenly balanced," and brings him "salvation and rescue"53, and afterwards he emerges innocent in judgment;
every Jew becomes aroused with proper and complete repentance, and consequently he has a complete atonement, as a complete soul in a complete body, a soul in a body below ten handbreadths54; and each and every man and woman is immediately55 inscribed and sealed in the book of the completely righteous for a good and sweet year, with good that is visible and revealed, in material and spiritual matters alike.
(From the sichos of Shabbos Parshas Ki Sisa 5745)
Notes
1) Beginning of ch. 9.
2) 17a, bottom (as indicated by the commentators on the Rambam — Radbaz, Kesef Mishneh, etc.).
3) In Dikdukei Sofrim there, a manuscript version is cited which concludes "(and these will no longer see [merit] for him) [OCR unclear]." So too it is cited in the Radbaz and Kesef Mishneh there. See below, note 16.
4) See Yad Malachi, Rules of the Rambam, sec. 24, and elsewhere.
5) One may say that the Rambam learned this from the Gemara's own wording, "they all saw for guilt," and not "they judged" or the like, which implies that this was not after deliberation, but that they all saw for guilt immediately at the outset. See the next note.
6) See the book Milchemes Mitzvah (composed by Rabbeinu Shlomo son of Rabbeinu Shimon Duran, known as the Rashbatz, author of the Tashbetz — from the title page, Warsaw printing, [OCR unclear]): "But immediately when he stood before the congregation for judgment, they all opened and said 'You are guilty' — he is exempt. And you will see the precision of their wording, that they did not say 'a Sanhedrin who all judged for guilt' but 'who opened,' which indicates the beginning of speech ('The opening of Your words gives light' — Tehillim 119:130), meaning, the beginning of your speech." See there. And he concludes there: "And so are the words of the Rambam in Laws of Sanhedrin" (indeed, the wording "they all opened, etc." that he cites is in the Rambam and not in the Gemara). According to his explanation it emerges* that there was no deliberation here at all, but this was the very beginning and opening of their statement (see also Responsa Beis Yitzchak, Orach Chaim, end of the book, omission to siman 53). However, in the Minchas [Chinuch], mitzvah 77 (subsection 13): it does not depend on the opening, but only on the first day — if they were all for guilt, he is exempt; and if at first they were all for guilt and afterwards they reverted to merit, he is certainly executed. See there. According to his explanation, one must say that this itself is what the Rambam teaches us: that everything depends on the opening of the first day (which is not explicit in the Gemara). And indeed this is explicit in the Yad Ramah on Sanhedrin there, that it depends on the first day (cited below, note 17). So too is implied from Be'er HaGolah of the Maharal, in the second Be'er (that it does not depend on their first statement, but on their opinion and agreement in the judgment). And so is evident from Devash LePi of the Chida, Maareches Ches, sec. 21 (who cites from the poskim "that this is only if all [ruled] for one reason, but if for different reasons it is considered a majority for guilt," which does not pertain to all saying "guilty" at the opening of the trial). — However, from the Rambam's wording it is implied that this is not considered a final verdict**. See below in the text. — This requires much further study. — See below, note 28.
*) It is very forced to say that his intent is that since they said so to [OCR unclear] (in his wording there, "You are guilty"), this is contrary to the law that in capital cases one does not open for guilt but for merit (Sanhedrin 32a, in the Mishnah; Rambam, Laws of Sanhedrin 10:7), as seemingly also implied from the continuation of his words there: "But if they deliberated in his favor and opened for him for merit and said to him, 'Do not fear, etc.'" — for opening for merit to the sinner does not pertain to our case (see the Minchas Chinuch cited in the text of this note).
**) Unlike according to the explanation in the Shitah at the end of Chamra VeChayei on Sanhedrin here (in the name of the Rosh), and in Kehilas Yaakov (Algazi), Leshon Chachamim, siman [OCR unclear], in the name of the Meiri: "Rabbeinu Meir explained: they hasten to execute him immediately" — from which it emerges that it is their final verdict.
7) See the Alter Rebbe's Laws of Torah Study, Kuntres Acharon, beginning of ch. 2.
8) In his wording there, 9:2. [OCR unclear]. And elsewhere.
9) See Rashi, Sanhedrin there (17a), s.v. Keivan degmiri.
10) Masei 35:24–25.
11) Mishnah, beginning of Sanhedrin (2a, bottom), and in several places. See below in the text; [OCR unclear] 26a.
12) Note Kiryas Sefer of the Mabit, Laws of Sanhedrin here, who is in doubt whether the law that they exempt him here is Biblical or Rabbinic.
13) Rosh Hashanah 25b, bottom, ff.
14) And [OCR unclear] that this is so according to the second (and main) reason: "Until he stands before the congregation for judgment (Masei 35:12) — until he stands in another court" — Makkos 12a (see Tosafos s.v. Derachmana amar — Rosh Hashanah there, 26a, and the sources cited there).
15) Similar to the law that one who argued for merit does not go back and argue for guilt (Sanhedrin 32a, in the Mishnah; see Rashi there, s.v. Eino, that this is because of "and the congregation shall save").
16) Especially according to the manuscript version of the Talmud (cited in Dikdukei Sofrim, Sanhedrin there), which repeats and specifies: "and these, since they do not see merit for him (any longer, etc.)."
17) Perhaps one may say that the difference in wording between the commentaries of the Yad Ramah and the Meiri on Sanhedrin is because they differ in the interpretation of the Gemara's words, as above:
In the Yad Ramah: "Rav Kahana said: A Sanhedrin who all saw for guilt on the first day exempt him. What is the reason? Because we have a tradition of the deferral of judgment: if they did not find merit for him on the first day, they must defer his judgment; perhaps they will find merit for him the next day, and one of those who find him guilty will see [the validity of] the words of those who argue for merit. And these, since now not one of them sees merit for him, will no longer see it, and deferring the judgment is of no use for him; and we require a [deferral of judgment] that has the potential to turn toward merit, and there is none — therefore we exempt him."
In the Meiri: "A Sanhedrin who all opened a capital case for guilt exempt him. Since they instituted the deferral of judgment for one for whom they did not find merit on the first day, lest they find reasons of merit for him — since they all opened for guilt, they no longer see merit for him, and he is not executed until some of them turn in his favor and those who find him guilty are the majority."
The Yad Ramah emphasizes a) the time in our case, that "they all saw for guilt on the first day"; b) that it is necessary to carry out a deferral of judgment. In the Meiri the emphasis is that they no longer see merit for him (and the time of the first day he wrote regarding the enactment of the deferral of judgment (as Rashi explains in the passage, s.v. Keivan degmiri), not regarding our case).
18) Similar to what the Rambam writes there, 10:9.
19) The Minchas Chinuch there is in doubt: if all saw for guilt and on that same day some saw merit in their minds, whether "they are permitted to state the merit, since one who argues for guilt can go back to [argue for] merit, etc., and they execute him; or*, since they immediately saw guilt and he was exempted, then through this merit that he wishes to argue, it is guilt for the accused, etc."** Nevertheless, one may still say that the practical difference is as in the text: a) when it is not speaking of the same day, so that it is like the court sitting again (akin to another Sanhedrin***); b) when not only some of them saw merit in their minds but the majority, in which case it is merit also in actuality (unlike when only some of them say it, in which case the merit is only in their statement, but the merit is guilt for him, as written in the Minchas Chinuch there). — One may say that it depends on whether the accused is considered to have emerged innocent in judgment, in which case there is no room to judge him again, or whether he was merely not convicted**** (and moreover, that they merely do not execute him — according to the Rambam's view, as below in the text), in which case it is merit also in actuality. This is not the place to elaborate.
*) Accordingly, one must say that what the Minchas Chinuch wrote earlier in [OCR unclear] (and in note 6) as a simple matter, "if all opened for guilt and afterwards some reverted and argued for merit, he is certainly executed," refers to the continuation of that same deliberation, while in [OCR unclear] he speaks of after they rose from the first trial and sat again on the same day.
**) See Ohr HaChaim, Mishpatim 23:2.
***) Note the Rambam there, 10:18. But obviously it does not pertain to our case, for there it speaks of one "whose judgment has been concluded."
****) See the commentary of Rabbi Y. F. Perla on Rav Saadia Gaon's Sefer HaMitzvos, positive commandment 97.
20) See Encyclopedia Talmudis, entry "Halanas HaDin," at its end, that some are in doubt whether the deferral of judgment is indispensable. Note also Kiryas Sefer, cited above in note 12. See there.
21) Note that the Rambam did not rule like Rabbi Akiva but like [OCR unclear], that a witness who saw [the act] may become a judge — see Kesef Mishneh and Lechem Mishneh on the Rambam, Laws of Testimony, end of ch. 5. However, one may say that this is only because "and the congregation shall save" can be fulfilled through the others, who did not see him kill the person; whereas in our case all of them are unable to see merit. See Turei Even on Rosh Hashanah there, s.v. [OCR unclear]; Responsa Beis Yitzchak, Choshen Mishpat, siman 2, sec. 9; the commentary of Rabbi Y. F. Perla there. This is not the place to elaborate.
*21) This also resolves the [OCR unclear] question mentioned above in section 1.
22) Maharatz Chayes on Sanhedrin there. See also Milchemes Mitzvah and Be'er HaGolah cited in note 6 (and see note 28).
23) Milchemes Mitzvah there.
24) Maharatz Chayes there.
25) See Radbaz on the Rambam. So too it is cited in Migdal Oz and Lechem Mishneh. And so is the version of the manuscript in the Gemara — see Dikdukei Sofrim, Sanhedrin there.
*25) As written in Ohr Same'ach there.
26) Note that in Milchemes Mitzvah (cited above, note 6) he writes: "And even in another court he cannot argue merit for himself; therefore he is exempted altogether." And in Be'er HaGolah there he concludes: "The court below has no [power] to judge him, and the Judge of all the earth will judge him." This is not the place to elaborate.
27) Rambam, Laws of Sanhedrin, beginning of ch. 2.
28) Regarding what is written in Milchemes Mitzvah ("and since these Sanhedrin erred in this and opened, because they all wished to execute him," as cited in the text) — the entire book is "against wanton men, wicked men, who presumed to respond against the words of our Sages, etc., and he showed before the eyes of the nations the righteousness of their laws . . and broke the jaws of heretics . ." (wording of the title page of Milchemes Mitzvah). That is, [he answered] in a very forced manner, in that he did not write for them the true explanation according to Torah, but rather something that would be acceptable to their intellect. Furthermore, we find similar cases in the Talmud many times, where they pushed [the questioner] away with a straw (see Rashbam, Bava Basra 116a, beginning). Especially since the response was not only to heretics but also "before the eyes of the nations" (as written on the title page), and "it is forbidden to reveal to them the reasons of the Torah" (in the wording of the Rashbam there).
29) Teitzei 25:3; Makkos 23a, bottom — in the Mishnah (cited in Rashi on the verse).
30) Mishnah, Sanhedrin 43b.
31) Laws of Repentance, at the beginning.
32) For in the Gemara there (46a–b) there is a dispute between Abaye and Rava, and according to Rava (and so is the view of R"Y and R"A), one executed while still in his wickedness has atonement. And he ruled like Abaye — see Tzafnas Pa'neach on the Rambam there. This is not the place to elaborate.
33) Laws of Testimony 20:2, at its end.
34) Laws of Testimony there.
35) Our parsha, 19:19.
36) See Semag, negative commandment 40.
37) Sanhedrin 64b; Rambam, Laws of Idolatry 6:4.
38) Tehillim 82:1. See also Sanhedrin, cited in note 45.
39) Laws of Divorce, end of ch. 2.
40) Sanhedrin 44a, beginning.
41) See Sefer HaMaamarim 5659 (p. 85).
42) Wording of the Rambam, Laws of Divorce there.
43) All the more so, and a fortiori, from the reason "Go and say to the Craftsman Who made me" (Taanis 20b, beginning) — and in our case it is within him himself.
44) See Sifri and Rashi, Devarim 1:13.
45) See Sanhedrin 6b, bottom, and the sources cited there.
46) Our parsha, 17:9. "You are obligated to follow only the court of your generation" (Rambam, Laws of Rebels 2:1; see Sifri and Rashi on the verse).
47) As is understood from the explanation of the saying of our Sages (Arachin 15b; Rambam, Laws of Character Traits 7:3) that lashon hara "kills three," including "the one about whom it is said" (even though he commits no transgression) — for through lashon hara one reveals and brings out his evil. And the measure of good is greater: when one speaks in his favor, he reveals the good of the other (and all the more so when it is done by the Sanhedrin). See on all this at length Likkutei Sichos vol. 27, p. 163ff. (and see there also the explanation of the Rambam's words, Laws of Character Traits 5:7, "he relates the praise of his fellow and not his disparagement at all"), and the sources cited there.
48) Shir HaShirim 5:2.
49) See the maamar "Ani Yesheinah" in Sefer HaMaamarim — Yiddish, and elsewhere.
50) Likkutei Torah, Re'eh 32a, bottom, ff.
51) Addition of my father-in-law, the Rebbe [the Previous Rebbe] — end of the maamar "Lecha Amar Libi" 5700.
52) See Likkutei Torah there, 32b. See also Likkutei Sichos vol. 4, p. 1343.
53) Rambam, Laws of Repentance 3:4.
54) Along the lines of the saying of our Sages, "in that same place" (Yoma 86b).
55) Rosh Hashanah (16b), and in the "Midrash" (Jerusalem Talmud, Rosh Hashanah 1:3; Yalkut Shimoni, Va'eschanan, remez 855), cited in the Tur, Orach Chaim (end of siman 581), that already on the Eve of Rosh Hashanah they are confident that they will merit, etc., and that they wrap themselves, etc.
Key Lesson
Even when a Jew seems so lost that the Sanhedrin itself can find no merit in him, the Torah rules that his true will is to fulfill all the mitzvos; his good is only concealed, and speaking in his favor reveals it. So too, especially in Elul, one should speak of and reveal the good in every Jew, thereby arousing him to go out and greet the King in the field.