Kommentar zu Dewarim 21:9

ואתה תבער BUT THOU SHALT PUT AWAY [THE GUILT OF INNOCENT BLOOD FROM AMONG YOU] — This teaches that if the murderer is found after the heifer’s neck was broken he must nevertheless be put to death, — and this is what Scripture describes as הישר בעיני ה׳ RIGHT IN THE EYES OF THE LORD (cf. Sotah 47b; Ketubot 37b and Tosafot on Ketubot 37b:16.1 ואח"כ נמצא ההורג).

ואתה תבער, when you are aware of someone’s guilt it is up to you to sentence the party and to carry out the sentence and not to rely on heaven to intervene. When you are unaware of the identity of the guilty party, and you have made exhaustive attempts to find him without success, you may rest assured that G’d Himself will take care of the problem.

ואתה תבער הדם הנקי, “You are to remove innocent blood;” Ibn Ezra adds the word עונש, “guilt,” which Moses did nor spell out here. Such guilt existed as in the Holy Land, especially, innocent blood is not to be shed, G’d does not tolerate this for long. By participating in the procedure of eglah arufah one fulfils a positive commandment wiping out the guilt of murder.

V. 9. ואתה תבער. Was durch ע׳׳ע symbolisch zum Vollzug gebracht wird, das hat das menschliche Gericht an dem Mörder zu vollziehen, wenn er und seine Tat in gesetzlicher Weise zur richterlichen Sühnung gestellt ist. Und auch die Vollziehung der ע׳׳ע-Institution enthebt dieser Pflicht nicht, wenn später der Mörder zu Gericht gebracht wird (Sota 47 a u. b תוספות Ketuboth 37 b).

ואתה תבער את הדם נקי מקרבך, “and you will remove the innocent blood from your midst.” Rashi explains that in the event the murderer is found after the heifer had already been killed, the murderer is not going free. This sounds strange seeing that we learned in the Talmud, tractate Ketuvot folio 37, that the meaning of the word in our verse is that we use the wording in our verse to learn that administering the death penalty by the sword must be performed by severing the vital arteries of the neck, just as the neck of that heifer was broken by its fall. Rabbeinu Moshe offers a different interpretation of the wording in our verse: the paragraph cited by Rashi deals with a murderer who is sentenced to death and according to the opinion that the death penalty by strangulation is more severe (Compare Talmud tractate Sanhedrin folio 49) than the death penalty by having one’s throat cut. This is also reasonable as the wording of the death penalty both in Exodus 21,12, and in Leviticus, 26,25: i.e. “he must surely be avenged,” and “I will bring a sword upon you that shall execute the vengeance of the covenant;” these lines refer to execution by the sword. The verse in Exodus quoted speaks of the penalty for killing a slave. If this is the penalty for killing a slave, it is logical that the penalty for killing a free man can certainly not be milder. This “logic” makes sense when we assume that the penalty by strangulation is milder than the penalty of cutting the victim’s throat. How can that logic be applied according to the scholar who holds that the penalty of strangulation is harsher than having one’s throat cut? Whence do we derive the law that murdering a free man is punishable by having one’s throat cut? The answer given is that we derive it from a baraitha which compares the law applicable to our portion, i.e. the killing of the heifer as a symbolic action by which the people near the town where the slain person was found declare that they had not been remiss in sending that person out of their town without escort or without basic provisions. If the murderer is found after that procedure has already been performed, according to the opinion that strangulation is a milder penalty than having one’s throat cut by comparing it to the penalty of the killer of a slave being executed by the sword, by reason of the logic we mentioned earlier. If one then would argue what is the meaning of the words in Numbers 35,33:כי לארץ לא יכופר, “but no expiation can be made for the earth” (that absorbed the blood of the slain)? We would have to say that this applies for a case in which the murderer is found only after the Yom Kippur following his having committed the deed. If no atonement had been made by that time it cannot be atoned for retroactively anymore.

ואתה תבער, “So You shall remove, etc;” Rashi explains here that the reference here is that in the event that the murderer is found after the eglah arufah, the heifer that was supposed to atone for the deed, had already been put to death, the people who had killed that beast should not be held responsible for wasting its life, and the murderer will be dealt with judicially. Although Rashi says that he will be executed, seeing that there were neither witnesses nor warning how can that be? [Rashi, of course quoted the Talmud, Sotah folio 47 to that effect. Ed.] If you were to ask that we have learned in the Talmud in tractate Ketuvot, folio 37, that the meaning of the verse in Numbers 35,33: ולארץ לא יכופר לדם אשר שופך בה, “but no expiation can be made for the land for the blood that is shed therein (of innocent people)”, so why was this verse necessary at all? The answer is in order to give us guidance for the scenario described by Rashi, as quoted in the Talmud Sotah 47. Why do we need the request that G-d should remove the innocent blood? It is to teach that all murderers are basically compared to the paragraph dealing with the heifer discussed in our chapter. Just as that heifer’s death is caused by breaking its neck, the neck of all murderers is broken as part of the execution, [Cutting off his neck with a sword. Ed.] On the other hand, that leaves the problem with the sage who holds that the death penalty for murder is strangulation. That death penalty is rated as harsher than the death penalty by cutting off one’s head with the sword. [The reader must remember that whereas the two death penalties by stoning or burning have been spelled out in the Torah, the other two types of death penalties have not been spelled out. Ed.] If not for the verse in the Talmud in tractate Ketuvot folio 37, we would have thought that the sin of murder warrants a more severe penalty that cutting off the head. Our author pursues these details; I have decided that they are not of great interest to either a potential victim or an innocent bystander. Ed.

כי תעשה הישר, “when you will do what is right in the eyes of the Lord.” The word כי in this verse is to be understood as if the Torah had written: אם, ”if.” or “when.” In practice the essential part in carrying out this commandment is the measuring of which is the nearest inhabited location to the site where the body of the slain person was discovered. Without determining this, the whole procedure leading to atonement cannot even commence. As mentioned previously, the “measuring” is far more than a mere technicality. The publicity connected to the taking of these measurements sets in motion a search for the killer.