Cytowanie Komentarza do Powtórzonego Prawa 17:4

היו בודקין אותו – After they had forewarned them, they would examine/investigate them in seven examinations, corresponding to seven expressions, as it is said in the Bible regarding those liable to the death penalty at the hands of the Jewish court (Deuteronomy 13:15): “You shall investigate and inquire and interrogate thoroughly…” These are three (i.e.ודרשת וחקרת ושאלת היטב ) But, [the word] "ושאלת" (you shall interrogate) is not part of the number for from it, we learned "בדיקות" /cross-examinations of witnesses as to minor circumstances. But in another place, He (i.e., God) says (Deuteronomy 17:4): “And you have been informed or have learned of it, then you shall make a thorough inquiry…” There are two others [here] – hence you have five. And in another place, He (I.e., God) says (Deuteronomy 19:18): “And the magistrates shall make a thorough investigation…” [which are] two more, hence you have seven.

IF THERE BE FOUND IN THE MIDST OF THEE WITHIN ANY OF THY GATES WHICH THE ETERNAL THY G-D GIVETH THEE. I have already explained⁵⁶Above, 7:15; 11:32. that when he speaks of the ordinances he mentions first the judgment to be executed upon the idols or their worshippers. He states [here] within any of thy gates which the Eternal thy G-d giveth thee, not to imply that this law applies only in the Land of Israel, since one who worships idols outside the Land is also liable to stoning. The purport thereof is rather to state, “if the matter be found in one of the distant cities which G-d will give you when He will enlarge thy border⁵⁷Further, 19:8. — and it be told thee, and thou hear it,⁵⁸Verse 4 here. in whatever city you may be, you are to investigate the matter diligently and if you discover that the charge is true, you shall bring them forth to that city wherein they worshipped, and stone them.”⁵⁹Verse 5. He states that such abomination was done in Israel⁵⁸Verse 4 here. [implying that it is done within the nation rather than within the Land] in order to hold the worshipper [of the idols] culpable even outside the Land, for in the case of the apostate city he said, that such abomination is done ‘in thy midst,’⁶⁰Above, 13:15. [within the Land], but here he mentioned within any of thy gates [a term generally limited to the Land] for it refers to common events as we have explained, and then he states in Israel⁵⁸Verse 4 here. in order to teach that it is binding upon the entire [nation of] Israel [even outside the Land]. It was also necessary to state within any of thy gates in order to teach that the worshipper be stoned at the gates [of the city] in which he worshipped the idols.⁶¹Kethuboth 45b. This is [the law] in the Land, for outside the Land he is stoned at the entrance of the court where he was judged.
Now, this commandment is explanatory, since He already stated He that sacrificeth unto the gods shall be utterly destroyed,⁶²Exodus 22:19. this applying in every place and at every time. Therefore he repeated it in order to explain what must be added to the commandment, but he abbreviated regarding matters previously mentioned.
And by way of the Truth, [the mystic teachings of the Cabala], it is possible that he mentioned within any of thy gates because he stated in transgressing His covenant,⁶³In Verse 2 before us. The question is why is “the woman” mentioned in the case of idol-worship. this [transgression] being the abomination done in [the Land of] Israel.⁵⁸Verse 4 here. Scripture made it known that the covenant is in the Land of the covenant,⁶⁴Ezekiel 30:5. whereas he who lives outside the Land is as if he worshipped idols.⁶⁵Kethuboth 110b. I have already mentioned this subject.⁶⁶Leviticus 18:25.
He mentioned man or woman,⁶³In Verse 2 before us. The question is why is “the woman” mentioned in the case of idol-worship. because, due to a woman’s frivolity, she can be enticed into idol-worship through a sign or wonder done before her, the proof being the case of the women before Jeremiah.⁶⁷Jeremiah Chapter 44. Similarly, with reference to [the witchcraft of] the ov (ghost) or yide’oni (familiar spirit), Scripture mentioned or a woman⁶⁸Leviticus 20:27. because these forms of sorcery were customarily practiced by women, as He said, Thou shalt not suffer a sorceress to live⁶⁹Exodus 22:17. [even though both male and female sorcerers are equally liable].⁷⁰Sanhedrin 67a. And in the Sifre⁷¹Sifre, Shoftim 148. the Rabbis interpret that [the reason for the expression or a woman is] because, having said in the case of an inciter Certain base ‘men’ are gone out from the midst of thee,⁷²Above, 13:14. implying that this law [of the apostate city] is not the same for [the inciters if they were] women,⁷³Sifre, R’eih 93. it was necessary to explain that regarding an idol-worshipper the law is the same for man and woman.
The meaning of the expression which I have commanded not⁷⁴Verse 3. is already explained.⁷⁵Above, 4:21.

AT THE MOUTH OF TWO WITNESSES, OR THREE WITNESSES, SHALL HE THAT IS TO DIE BE PUT TO DEATH. “If the evidence can be sustained by two witnesses, why did Scripture specify ‘three?’ It is to liken three to two: just as the evidence of two witnesses forms a single unit of testimony, so does the evidence of three, constitute a single unit of testimony and they are not subject to the law of plotting witnesses [which declares that whatever they plotted to do to their brother should be done to them]⁷⁶See further, 19:19. unless all three are proven to be plotters.”⁷⁷But if only one or two of the three witnesses were proven to be false, the evidence is void, and both, the accused and the witnesses are free, and the punishment for plotting witnesses is not imposed, provided all witnesses form a single unit of testimony. The same principles apply even to one out of a hundred witnesses (Makkoth 5b). This is Rashi’s language. So also the principle [of a single unit of testimony] applies if one of the witnesses is found to be a kinsman [and hence ineligible to testify] or to have some other disqualification — the testimony of all is void. If they are proven to have been plotting witnesses, [in which case] all of them are subject to the death-penalty or payment of money [as the case may be, and the third witness cannot claim immunity because of his argument that even had he not testified the evidence of the first two witnesses was sufficient to sustain the charge], since the main intent of Scripture was to liken the evidence of three witnesses to that of two in every respect, according to the opinion of our Rabbis.⁷⁸Makkoth ibid.
And the Gaon Rav Saadia⁷⁹On Rav Saadia see Vol. II, p. 99, Note 230. On the title Gaon see ibid., p. 521, Note 74. Rav Saadia’s comment is quoted here by Ibn Ezra. said, by way of the plain meaning of Scripture, that the interpretation of the verse is as follows: “two witnesses, or three judges who [officially] accept the testimony of the two witnesses.”⁸⁰Rav Saadia holds that even in capital cases which require a court of twenty-three judges, witnesses need not testify in the presence of all the judges; it is sufficient that they testify in the presence of three judges who may receive their testimony on behalf of the full court. The phrase at the mouth of two witnesses, or three witnesses thus means: “upon the testimony of two witnesses who appear before the entire court of twenty-three judges, or by the word of the three judges who officially accepted the testimony of the witnesses and later relayed it to the entire court — shall the one that is to die be put to death. Ramban will refute this interpretation of the Gaon, for there is in the verse etc. But there is in the verse no mention of acceptance of the testimony; instead, it refers explicitly to witnesses. But it seems to me that the Gaon erred in his [statement of this] law, for testimony in capital cases cannot be accepted except in the presence of a Sanhedrin of twenty-three judges [and not, as Rav Saadia holds, before only three judges]! Rather, the plain meaning of the verse is that the condemned man shall be put to death at the mouth of two witnesses if no more are there, or at the mouth of three witnesses if three witnesses are to be found there. Scripture thus states: when it will be told thee, and thou hear it⁵⁸Verse 4 here. you are to inquire diligently into the matter by means of the testimony of all the witnesses found there. Thus if we heard that he transgressed in the presence of three people, we should send for them and have them all come to court and testify. The same law applies to a hundred, for by hearing the words of them all, the truth will become clear. But if not more [than two] were present, or they [the others] left and are not to be found, then two are sufficient.

ודרשת וחקרת ושאלת היטב THEN SHALT THOU INQUIRE, AND MAKE SEARCH, AND ASK DILIGENTLY — From here — from the variety of expressions denoting inquiry in this verse — they (the Rabbis) derived the law of investigating capital cases by means of seven investigations” (referring to date, time and place). in the following manner: here (in our verse) there occur three expressions relating to inquiry, viz., ודרשת, וחקרת and היטב — the expression ושאלת does not come into account, because from it they derived בדיקות, the examination referring to accompanying circumstances, — and in another passage (Deuteronomy 19:18) it states, “and the judges shall enquire diligently (ודרשו השופטים היטב)”, and still in another passage (Deuteronomy 17:40) it states, “and thou shalt inquire diligently (ודרשת היטב)" — thus altogether seven expressions. — And although they are used in connection with different cases they learned by way of analogy (ג"ש) of the term היטב used here and in the passages quoted that it is intended to apply what is stated in one case to the others also (Sanhedrin 40a; cf. Sifrei Devarim 93:6).