בית דין מכין ועונשין לצורך שעה ובו סעיף א:
כל ב"ד אפילו אינם סמוכים בא"י אם רואים שהעם פרוצים בעבירות (ושהוא צורך שעה) (טור) דנין בין מיתה בין ממון בין כל דיני עונש ואפילו אין בדבר עדות גמורה ואם הוא אלם חובטים אותו ע"י עכו"ם (ויש להם כח להפקיר ממונו ולאבדו כפי מה שרואים לגדור פרצת הדור) (טור בשם הרמב"ם בפרק כ"ד מסנהדרין) וכל מעשיהם יהיו לשם שמים ודוקא גדול הדור או טובי העיר שהמחום ב"ד עליהם: הגה וכן נוהגין בכל מקום שטובי העיר בעירן כב"ד הגדול ומכין ועונשין והפקרן הפקר כפי המנהג אע"פ שיש חולקין וס"ל דאין כח ביד טובי העיר באלה רק להכריח הציבור במה שהיה מנהג מקדם או שקבלו עליהם מדעת כולם אבל אינן רשאין לשנות דבר במידי דאיכא רווחא להאי ופסידא להאי או להפקיע ממון שלא מדעת כולם (מרדכי פרק הגוזל בתרא) מ"מ הולכין אחר מנהג העיר וכ"ש אם קבלום עליהם לכל דבר כן נ"ל (וע' בי"ד סי' רכ"ח דיני תקנות וחרמי צבור) כתבו האחרונים בתשובותיהם דמי שנתחייב מלקות יתן ארבעים זהובים במקום מלקות (מהרי"ו סי' קמ"ז ומהר"ם מריזבורג) ולאו דינא קאמר אלא שהם פסקו כך לפי שעה אבל ביד הב"ד להלקותו או ליטול ממון כפי ראות עיניהם לפי הענין למיגדר מלתא (וע"ל ריש סי' תכ"ה בהג"ה): Every Court of Law,2Even a Court of Law outside the Land of Israel — M.E. even [one whose members] are not duly ordained in the Land of Israel,3 supra § 1, n. 14. — if they see that the people are unrestrained in [committing] sins,4Even if there is one individual who is in the habit of violating the law, he may be penalized by the Court of Law, although the punishment meted out is not in accordance with Biblical law, only that when the people as a whole are unrestrained in transgressing laws, they may enact measures as a safeguard and they may inflict penalties on any one person for the infringement of their rules even if they did not see that person committing sins unrestrainably — M.E. and [provided] that the exigencies of the hour demand it,5Tur — G. It may, however, be asked (in accordance with the interpretation of M.E.), why should an individual transgressor be considered as falling under the category of ‘exigencies of the hour?’ This should, therefore, be understood as follows: If we withhold punishment from an habitual individual sinner, others will learn from his evil ways and will likewise become unrestrained in the commission of sins. Hence, the exigencies of the hour apply here too (Tummim). Others, however, maintain that the individual may be penalized even when the foregoing reason is not applicable (Shebuth Ya‘akob) — P.Tesh. may pass judgment both [with respect to] death6Derived from San. 46a, Yeb. 90b: ‘It was taught, R. Eliezer b. Jacob stated: I heard that the Court of Law may (whenever necessary) administer punishment by lashes and impose (capital) sentences, even though not (warranted) by Biblical law; not for the purpose of disregarding the Torah but in order to make a fence around the Torah. It once happened that a man rode on horseback on the Sabbath during the Greek period and was brought before the Court of Law and was stoned, not because he was liable to this penalty, but because the needs of the hour demanded it. It also happened that a man had intercourse with his wife under a fig tree and was brought before the Court of Law and was flogged, not because he deserved it, but because the needs of the hour demanded it.’ N.Yos., however, writes that the above penalties were imposed by the Great Sanhedrin but any other Court of Law does not have the authority to administer such punishment. He adduces the following text to prove his point: San. 52b: ‘Immarta, the daughter of Tali, a Kohen, committed adultery. In consequence of that, R. Ḥama b. Tobiah had her surrounded by faggots and burnt. R. Joseph said: He (R. Ḥama) was unaware of two laws. He was unaware of R. Mathna’s statement (that burning was executed by pouring molten lead down the culprit’s throat) and was ignorant of the following Baraitha: And thou shalt come unto the priests, the Levites, and unto the judge that shall be in those days (Deut. XVII, 9). This teaches that when the priesthood operates (in the Temple), the Judge operates (with respect to capital punishment) ; but when the priesthood does not operate, the Judge may not function.’ Hence, R. Ḥama, who flourished after the destruction of the Temple had no authority to impose capital punishment. N.Yos. cites additional cases to corroborate his viewpoint: Nid. 13b, San. 58b: ‘R. Ḥama had the hand of one who was accustomed to strike other people cut off.’ San. 27a: ‘The Exilarch (Resh Galutha) said to R. Abba b. Jacob, Go and investigate the matter; if he is definitely the murderer, dim his eyes.’ In these latter cases only partial punishment was administered but not full punishment in accordance with Biblical law. However, N.Yos. is opposed by the Codifiers (v. also D.M.) who hold that if the needs of the hour demand it even full punishment may be meted out including capital sentences although it would not be in accordance with Biblical law where legal warning and valid witnesses are required which would be difficult to obtain nowadays as a result of which the world would become full of violence and ultimately destroyed. Cf. ‘Jerusalem was destroyed because judgments were rendered in accordance with strict Biblical law’ (B.M. 30b). Thus RaShBA, N, and Asheri in Resp. Hence, Caro’s ruling here. , also the case of Simeon b. Shetaḥ in Mishna San. 45b who hanged eighty women at Ashkelon. and monetary [penalties]7M.K. 16a; B.K. 96b. as well as [to administer] all laws of punishment,8Ibid. even if in the case [in question] there is no valid evidence [available].9Kid. 81a; San. 26b and Tosaf. s.v. החשוד; Tur citing Yad, Sanhedrin XXIV, 4. This means that there was no legal warning given by witnesses to the offender immediately before committing the offense. For witnesses and legal warning are required only when adjudicating a Biblical law, but one who disobeys the ordinances of the country may be penalized according to the needs of the hour (N in Resp.) — M.E., ShaK. In capital cases the consent of the town Elders is required after due deliberation (B.Yos. citing RaShBA) — M.E. And if he is a stern individual, they may flog him by means of heathen authorities.10Derived from Mishna Git. 88b: ‘A heathen court may impose flogging upon a man and say to him, Do whatever the Israelite (authorities) tell you.’ Since Caro does not record here the latter statement of the Mishna (as found in Tur), viz., ‘and say to him, Do whatver the Israelite (authorities) tell you,’ it follows that even the final legal proceedings may be carried out by the heathen authorities since the offender is a very harsh person and the penalty is not in accordance with Biblical law — M.E. For only in the case of a Get (as in Git. ibid.) must the final legal proceedings be executed by Israelite authorities in order that it be considered valid — Nethiboth. , also infra § 26. And they have authority to expropriate his property and to forfeit it according to whatever they see fit in order to fence in the lawlessness of the generation.11Tur on the authority of Yad, Sanhedrin XXIV, 4-10 — G. Derived from M.K. 16a where Scriptural verses are adduced whence we derive that we have the authority to excommunicate persons refusing to obey the summons of the Court, to pronounce the Ḥerem (v. Glos.), to forfeit property, to curse, to smite, to pluck one’s hair, to adjure (so that one desists from malpractices), to fetter, to arrest and to prosecute. ‘We administer flogging on account of an evil rumour, because it is said, Nay (al), my sons; for it is no good report that I hear’ (I Sam. II, 24) — Kid. 81a. This has reference to an uninterrupted rumour not due to intimidation and where no enemies are about who might have published the rumour — Yeb. 25a. Cf. Tur. O.Ḥ. § 1 , also Git. 36b on the Rabbis’ power to expropriate one’s property; also Meg. 25b where it is stated that it is permissible to abuse a person of ill fame. The latter statement refers to an ordinary person but not to a scholar (RaN). Cf. Men. 99b: ‘Resh Lakish said, A scholar-disciple who has committed a misdeed should not be reproached in public because it is said, Therefore shalt thou stumble in the day and the prophet also shall stumble with thee in the night (Hos. IV, 5), that is to say, Keep it dark like night.’ The par. passage in M.K. 17a reads that ‘they do not place him under the ban.’ Some Later Authorities rule that the Court of Law has the power only to declare a debt cancelled but they cannot take possession of the money or the like on behalf of a person before it reaches the latter’s hand (Birke Yosef). Others (on the basis of Git. 36b) hold that the Court of Law does have this authority even before it reaches the latter’s hand — P.Tesh. All their acts, however, should be [done] for the sake of Heaven.12Cf. San. 46a: ‘Not with the purpose of disregarding the Torah, but in order to safeguard it.’ And [this should be executed] only [by] a great personage of the generation13Derived from B.K. 96b regarding the man who misappropriated a pair of oxen and was penalized by R. Naḥman, whence we see that only a distinguished personage like R. Naḥman who was the son-in-law of the Nasi’s house had the power to impose penalties. or [by] the representatives of the town14 B.B. 8b. whom they [i.e., the people] have recognized as the Court of Law over them.15Tur has שהמחום רבים עליהם ‘whom the public recognized as authorities over themselves.’ Gloss: And thus is the accepted practice everywhere, [viz.,] that the representatives of the town are regarded in their [own] town [as authoritative] as the [former] Great Sanhedrin.16Mord. (B.M. II beg.) on the authority of R. Gershon states: ‘Whosoever is appointed a leader of the community is regarded like the mightiest of the mighty and Jepthah in his generation is like Samuel in his generation (R.H. 25b) and whatever he does is considered binding.’ Thus also RaShBA — M.E. They may administer flogging and impose [death] penalties and their expropriation [of one's property] is considered valid according to the adopted custom,17MaHaRIK (Rt. I, XIV) writes that even according to the opinion that the representatives of the town have the power to enact measures as they see fit, it applies only to communal needs but not with respect to cancelling a debt of one individual for the benefit of another which does not fall under the category of communal needs. Thus also Isserlein in his Decisions. Furthermore, only one who is a distinguished personage in his generation may expropriate property — M.E. Cf. supra n. 13. If the custom in the community is to submit the matter to arbitration by one litigant choosing one person and the other litigant choosing another person and the Head of the Court of Law acting as the third, — this practice should not be altered — P.Tesh. although there are some who differ and are of the opinion that the representatives of the town have no power in these [matters] save that they [have the authority] to compel the community in [observing] whatever was an adopted practice heretofore,18B.B. 8b: ‘The townspeople have a right to stipulate meassures, prices of food and wages of labourers and to remove (place outside of the protection of the law — Rashi) those who disregard the terms fixed by the authorities (ולהסיע על קיצתן). The dissenting opinion takes ולהסיע as referring to ‘measures etc.,’ i.e., just as in the latter case it must be with the consent of all, so too in the case of ‘terms fixed by the authorities,’ the consent of all is required. The first opinion takes ולהסיע as a separate measure. Hence, the consent of all is not required — W.G. Cf. also Y. Meg. III, 2(74a) : ‘The seven representatives of the town are regarded as the (entire) town. What are we treating of? If they (the townspeople) accepted them, then even if one (was appointed his decision should be binding upon all the townspeople) ; if they did not accept them, then even many (i.e., more than seven cannot enforce their rulings upon the townspeople). We, therefore, deal here with an undefined case (i.e., the townspeople appointed them to look after the communal matters, without specifying which matter they delegated to them, and the town representatives sold aught without consulting the people, we are therefore, informed that their transaction is binding).’ or they accepted upon themselves [a new measure] with the consent of all [the townspeople],19e., by mere speech the matter becomes binding even in a matter concerning which no adopted practice existed formerly — M.E. but they may change naught in any matter that would involve a gain for one person and a loss for another20For this does not come under the category of safeguarding a cause — M.E. , also Ḥid. Hag. P. Tesh cites the case of the controversy around the Sulzbach edition of the Talmud. The latter was forbidden to be printed until a certain period would elapse after the Amsterdam edition of the Talmud was published. Certain authorities ruled that the purchasers of the Sulzbach ed. were prohibited to study in it. Zikron Ya‘akob, however, on the basis of the present ruling, held that since this prohibition would involve a gain for one (i.e., the Amsterdam publisher) and a loss for the other (i.e., the Sulzbach publisher), the law is that those who had already bought the Sulzbach edition were permitted to use it. , also P.Tesh. to Y.D. § 208, 5; § 236, or to declare a debt cancelled without the consent of all [the townspeople].21Mord. to B.K. X — G. Nevertheless, [in these matters] we follow the adopted custom of the town, especially if the [townspeople] accepted them [to render decisions] in every matter.22 infra § 23 Thus seems to me [to be the correct view].23 Y.D. § 228 on the laws pertaining to ordinances and Ḥerem for the sake of the public welfare — G. The later authorities state in their Responsa that one who has been sentenced to flogging may give forty gold coins instead of the flogging.24MaHaRIW s. 147 and R. Menaḥem of Merseburg — G. , Ket. 46a where a monetary fine is designated as flogging. This is, however, not stated as a law, only that they decided thus because [of the needs of the] hour, but [in reality] the Court of Law has the authority to flog him or to confiscate [his] property as they see fit according to the matter [in hand] in order to safeguard a cause.25 infra § 425 Gloss — G. On the significance of the principle ‘to safeguard a cause’ (למיגדר מילתא), v. Yeb. 90b.