"At the mouth of two witnesses ..." (Devarim 17:6)
2010 S.H. Parker

All Hebrew transcription and translations are from the Mechon-Mamre on-line chumash, unless otherwise noted.

There was an episode of "The West Wing" TV series in which an evangelical radio host was taken to task for her very fundamentalist views (check out the etymology of "fundament," you'll enjoy it). Jed Bartlett (Martin Sheen), the President, responded with a rapid list of what seem like relatively innocuous behaviors, asking whether we should be putting people to death for them (See the scene: The West Wing: Bartlett quotes scripture). 

While several were Biblical death penalty offenses the script did take things out of context but the evangelical character, like many real-life fundamentalists, isn't aware of this. And, neither, I suspect, is the script writer.

What are capital offences? From The Jewish Encyclopedia:

adultery (Lev. xx. 10; Deut. xxii. 22)
bestiality (Ex. xxii. 18 [A. V. 19]; Lev. xx. 15)
blasphemy (Lev. xxiv. 16)
perjury in capital cases (Deut. xix. 16-19)
false prophecy (Deut. xiii. 6, xviii. 20)
idolatry, actual or virtual (Lev. xx. 2; Deut. xiii. 7-19, xvii. 2-7)
incestuous or other forbidden relations (Lev. xviii. 22, xx. 11-14)
kidnapping (Ex. xxi. 16; Deut. xxiv. 7)
murder (Ex. xxi. 12; Lev. xxiv. 17; Num. xxxv. 16 et seq.)
rape of a betrothed woman (Deut. xxii. 25)
striking or cursing a parent, rebelling against parental authority (Ex. xxi. 15, 17; Lev. xx. 9; Deut. xxi. 18-21)
gathering wood on Sabbath (Ex. xxxi. 14, xxxv. 2; Num. xv. 32-36)
witchcraft and augury (Ex. xxii. 17; Lev. xx. 27).

Torah is clear that certain violations of the Sabbath, that witchcraft, necromancy, casting lots, sassing your parents (בֵּן סוֹרֵר וּמוֹרֶה -- Devarim 21:18), male homosexuality and a number, a seemingly large number, of other behaviors are punishable by death. In fact, it is hard to read very far -- especially  in Devarim -- without running into a death penalty offense.

The בֵּן סוֹרֵר וּמוֹרֶה (stubborn and rebellious son) is stoned at the gate of the city (and not by the witnesses, this one time only -- it is customary for the witnesses/accusers to throw the first stone (the source of "let he who is without sin cast the first stone") -- but, in this case, by the men of the city). Witchcraft, sorcery, etc. fare no better (for example, Devarim 18:10-12):

לֹא-יִמָּצֵא בְךָ, מַעֲבִיר בְּנוֹ-וּבִתּוֹ בָּאֵשׁ, קֹסֵם קְסָמִים, מְעוֹנֵן וּמְנַחֵשׁ וּמְכַשֵּׁף. 10 There shall not be found among you any one that maketh his son or his daughter to pass through the fire [Moloch worship], one that useth divination, a soothsayer, or an enchanter, or a sorcerer,
 וְחֹבֵר, חָבֶר; וְשֹׁאֵל אוֹב וְיִדְּעֹנִי, וְדֹרֵשׁ אֶל-הַמֵּתִים. 11 or a charmer, or one that consulteth a ghost or a familiar spirit, or a necromancer.
 כִּי-תוֹעֲבַת יְהוָה, כָּל-עֹשֵׂה אֵלֶּה; וּבִגְלַל, הַתּוֹעֵבֹת הָאֵלֶּה, יְהוָה אֱלֹהֶיךָ, מוֹרִישׁ אוֹתָם מִפָּנֶיךָ. 12 For whosoever doeth these things is an abomination unto the LORD; and because of these abominations the LORD thy God is driving them out from before thee.

 

While a very funny send-up of evangelicals and of those who seem determined to legislate their interpretation of "biblical" morals, both characters in the scene miss something rather important. Actually, they both miss the essence of the matter.

What is so essential that we, along with the characters on "The West Wing," miss? In the most superficial terms, we all fail to remember that one of the great themes of Torah and the entire corpus of Tanach is justice:

צֶדֶק צֶדֶק, תִּרְדֹּף--לְמַעַן תִּחְיֶה Justice, justice [better, "righteousness, righteousness"] you will pursue in order that you may live
Devarim 16:20 (my translation)

"Justice/righteousness" is a pre-eminent characteristic of God (mercy being the other). "Justice/righteousness" is an overriding concern of the entire Torah. But all these death penalties seem almost capricious. So many things one can be put to death for hardly seems "just" much less "merciful."

Which leads to the specific thing we miss.

Many of the behaviors listed above preempt priestly prerogatives (the various forms of divination, specifically). In fact, they are pagan rituals, associated with pagan cults and idolatry (and the word "abomination [lit. objectionable, offensive]" in the above verses is the giveaway). From this perspective, it is clear that such behaviors indeed violate the brit at its very heart. These behaviors are essentially idolatrous, behaviors that "put other gods before Me."

But what about the stubborn and rebellious son (בֵּן סוֹרֵר וּמוֹרֶה -- Devarim 21:18)? Nothing idolatrous there.

What is entirely missing is just how one gets a capital conviction. If the בֵּן סוֹרֵר וּמוֹרֶה is to be stoned by the men of the city, at the gate, just how do we convict this poor boy of the crime?

How do we convict a person of a capital offense? How do we invoke the death penalty?

Actually, Torah tells us:

 עַל-פִּי שְׁנַיִם עֵדִים, אוֹ שְׁלֹשָׁה עֵדִים--יוּמַת הַמֵּת:  לֹא יוּמַת, עַל-פִּי עֵד אֶחָד. At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.
Devarim 17:6

In fact, a few chapters later, Torah repeats this requirement for any civil conviction, not just capital cases:

לֹא-יָקוּם עֵד אֶחָד בְּאִישׁ, לְכָל-עָו‍ֹן וּלְכָל-חַטָּאת, בְּכָל-חֵטְא, אֲשֶׁר יֶחֱטָא:  עַל-פִּי שְׁנֵי עֵדִים, אוֹ עַל-פִּי שְׁלֹשָׁה-עֵדִים--יָקוּם דָּבָר. One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses, shall a matter be established.
Devarim 19:15

We are told two times, in detail, that a minimum of two witnesses and we are told not just one must testify to convict a person of a transgression. 

Does this mean that a single witnesses, even the most reliable, trustworthy, honorable, credible, utterly "trust-with-your-life" kind of person cannot convict by himself?

That is exactly what it means. The Nasi, a navi, not even Moshe Rabbeinu himself can stand alone to convict on a capital or lesser offense (there's even that case of the tile in the oven, in which it can be argued that when Ha'Shem Himself came to testify about a halacha but was rebuffed, being only one ... Bava Metsia 59a-b). Not the king, not the president, not without a second, independent witness. Torah is crystal clear on this.

Okay, getting a capital conviction isn't easy. (In fact, it should be obvious, the act must be really, really blatant, right out there "in front of god and everyone." The offender really has to be right up in peoples' faces.)

And the Rabbis make it harder. The Rabbis (wisely, for a change) add something: the witnesses may not be related. They may not be related either to each other or to the litigants (there is an exception to this but it is not germane here). This avoids the all too common phenomenon in clan-oriented societies of a brother or cousin or other clansman lying to support his kinsman.

Then it gets harder still as the Rabbis describe the procedures established by the Sanhedrin.

For a capital crime, a full Sanhedrin, 23 judges are required (masekhet Sanhedrin, 1a). And, more still, a majority of two is required for conviction.

I remember learning that a person who comes forth as a witness in a capital case is first interrogated. By the court. The court wants to know what the would-be witness did to stop the crime. If the would be witness cannot claim to have done something reasonable to prevent the crime -- intervene if nearby, call out if not -- he cannot be a witness (Sanhedrin 40b).

The Jewish Encyclopedia summarizes as follows:

That capital punishment was a rare occurrence in the latter days of the Jewish commonwealth is patent from the statement in the Mishnah that a court was stigmatized as "murderous" if it condemned to death more than one human being in the course of seven years. Indeed, Eleazar b. Azariah applied the same epithet to a court that executed more than one man in every seventy years; and his famous colleagues, Tryphon and Akiba , openly avowed their opposition to capital punishment, saying, "Had we belonged to the Sanhedrin [during Judea's independence], no man would ever have been executed," as they would always have found some legal informalities by which to make a sentence of death impossible (Mak. i. 7a).

Yet again, Talmud Lo'mer: there are 100 men. 99 are known to be murderers. One is known to be innocent. You do not know which is which; "for the sake of the one [innocent person], all go free." Sounds a lot like the basis of the "reasonable doubt" standard used in American law, doesn't it?

In other words, not only is getting a capital conviction difficult (imagine how many capital convictions our criminal courts would get with the requirement of two independent witnesses, much less before 23 judges, much less by a plurality of two - plurality of two: if you can't get a conviction by two, you add a judge and start over...), it's something that (even without the Rabbis' antipathy) shouldn't happen very often.

Perhaps this is a vision of עולם הבא. When everyone acknowledges God, there will be no criminal, much less capital, offenses.

Perhaps.

Perhaps there is something more immediate for us to learn. At that, something more important for us to learn.

The world was given into man's dominion. Mankind is responsible for it, to do their best to care for it. We are responsible for the task, tikkun olam, even though it may not be for us to complete the task (according to a midrash). But God, too, is responsible. If we have done what is right, in the right way (Rabbi Ginsberg's interpretation of the double "Justice/righteousness" in Devarim 16:20, "Justice, justice you will pursue" means to pursue right ends through right means), we have the right to expect God to ensure the right result.

If we have discharged our responsibility, we have the right to expect God to finish the task (I have this from Rabbi Radinsky, see my comments on the parting of the waters).

In other words, we are responsible for what is known to us and is within our power. The rest is God's. What we do not see, what we do not have sure and certain knowledge of, is not our responsibility; it is God's.

In other words, God will deal with those 99 murderers we set free. 

In other words, if a person does wrong and we do not have two independent witnesses, it is for God. 

In other words, if a person violates the Divine mandate and we do not know about it, it is for God.

And, that is what it really means to "have faith."

Does this imply that I am saying that someone who feels compelled to pass laws enforcing (their understanding of) divine mandate is not a "person of faith?" Let us be quite clear about this, such persons are, indeed, not people of faith, be they Jews, Christians or Muslims. Imposition of "God's will" by force or by civil law is prima facie evidence of lack of faith. It is also prima facie evidence of a failure to understand Holy Writ.

Think that's just my interpretation?

H. Pablano (The Talmud, Selections; Philadelphia, 1876) details the post-conviction procedure: The judges in capital cases were required to fast all day on the days when they pronounced judgments, and even after the sentence the case was again considered by the highest court before it was carried into effect [automatic appeal].

The place of execution was located a considerable distance from the court, and on his progress thereto the prisoner was stopped several times, and asked whether he could think of anything not said which might influence the judges in his favour. He had the privilege of returning to the court as often as he pleased with new pleas, and a herald preceded him, crying aloud, "This man is being led to execution, this is his crime ... these are the witnesses against him ... if any one knows aught in his favour let them come forth now and speak the words."

... Capital punishment, however, was of such rare occurrence as to be practically abrogated. In fact, many of the judges [Rabbis] declared openly for its abolition, and a court which had pronounced one sentence of death in seven years was called "the court of murderers." (p.331)


  הַנִּסְתָּרֹת--לַיהוָה, אֱלֹהֵינוּ; וְהַנִּגְלֹת לָנוּ וּלְבָנֵינוּ, עַד-עוֹלָם--לַעֲשׂוֹת, אֶת-כָּל-דִּבְרֵי הַתּוֹרָה הַזֹּאת. The secret things belong unto the LORD our God; but the things that are revealed belong unto us and to our children for ever, that we may do all the words of this [teaching]
Devarim 29:28