Rambam - 1 Chapter a Day

As explained by the Sifre, Numbers 35:16-17 (see also Rashi’s commentary), to be liable for the death penalty, a person must strike a colleague with a stone large enough to kill him in an ordinary circumstance. If, by contrast, he kills him with an iron utensil, there is no minimum measure, for any iron utensil can cause death. See the following chapter where these principles are explained.

The rationale for these two examples is the principle that “A person is not considered to be an agent to commit a sin.” Since the murderer and the servants are also commanded not to kill, it is incumbent upon them to heed God’s command, rather than the request of the person who ordered the killing.

Since the person did not kill him directly, he is not to be executed by the court. See Chapter 3, Halachah 10, for other examples of this principle.
See Hilchot Melachim 9:4, which states that a gentile who kills a colleague in this manner is liable.

For a person’s life is not his own property, but that of God. (See Hilchot Chovel UMazik 5:1.)

And the verse states that his blood will be shed by a man - i.e., he may be executed by the court.

For it speaks “of the blood of your own lives.”

See Hilchot Melachim 3:10, which states that a king has the authority to enact laws and even kill subjects in order “to strike fear into [the hearts] of the wicked in the world, and break their power.”

See Hilchot Sanhedrin 24:4, which says that a court has the authority to execute people who commit acts that are not ordinarily punishable by death, if they suspect that the moral climate of the community at large will be affected by their conduct. For example, the court once executed a person for having sexual relations with his wife outdoors, because they feared that this would lead to licentious conduct among people at large. Similarly, if they fear that leaving such killers alive would lead to bloodshed in the community at large, they may execute them.

Imprisonment is never mentioned in the Torah as a form of punishment, and the commentaries have had difficulty pointing to the Rambam’s source. Although some have mentioned Sanhedrin 81b, which speaks of placing a person in a kipah so that he shall die, the intent here is not to cause the murderer’s death.

Cf. I Samuel 25:31. This verse speaks of Abigail’s counsel to David not to kill her husband Naval. It is thus chosen by the Rambam, not only to borrow a Biblical phrase, but to allude to its content.

Once the infant survives for 30 days, however, it is considered to be viable, and one is liable for killing it.

Needless to say, killing such an infant is forbidden, regardless of its state of health. From this halachah, we see a clear ruling with regard to the “mercy” killings of unhealthy infants. Killing such an infant is forbidden and may be punishable by death.

Note the contrast to the following halachah with regard to killing a person considered trefah.

Despite the fact that the person would otherwise die, by hastening his death one becomes liable for murder. Thus, this halachah highlights the prohibition against the “mercy” killings of adults who seek death to avoid facing their infirmity.

Sanhedrin 78a debates whether such a victim is compared to a person in his death throes because of old age and the like, or a person who is considered trefah. The Rambam accepts the latter position.

I.e., he has an ailment in one of his vital organs that will certainly cause his death, in contrast to the above halachah, which speaks of a person who will die because of general ill health or old age.

Implied is that the Heavenly Court does hold such a person liable.

I.e., that fact does not have to established by testimony.

I.e., the Rambam is explaining that every murderer cannot claim that he should not be held liable because his victim was a trefah. For we operate under the presumption that the victim was physically sound unless testimony to the contrary is presented to the court.

I.e., he cannot be executed for his deed.

Hazamah refers to disqualifying witnesses by testifying that they were in a different place at the time they claim that the incident took place. For example, a witness claims to have witnessed a murder in Jerusalem at 4 PM, Wednesday, while other witnesses testify that at 4 PM, Wednesday, the witness was together with them in Tiberias. Hazamah does not challenge the truth of the statement that the witness made (i.e., it does not say, “the murder did not take place at 4 PM”); it challenges the witness’s right to make such statements (Hilchot Edut 18:1-2).

With regard to a witness disqualified through hazamah, Deuteronomy 19:19 states: “You shall do to him as he schemed to do to his brother” - i.e., he should be given the punishment that he desired to have inflicted on the original defendant. In this instance, however, the lying witness is not subjected to this punishment - execution - for the reasons mentioned by the Rambam.

While they, by contrast, are of sound body. Executing a person of sound body is a far more severe penalty than executing a trefah. Thus, the lying witnesses would not be punished “as they schemed,” but more severely so. This is beyond the scope of the fiat of Deuteronomy, ibid.

In elementary financial cases, by contrast, questions that might lead to hazamah are not asked of the witnesses. (See Hilchot Edut 3:1.)

The intent of this halachah is to underscore the status of a Canaanite servant, that with the exception of the law mentioned in Halachah 12, there is no difference between him and an ordinary Jew with regard to the laws of murder. Although a Canaanite servant is not a full-fledged member of our people and thus is not obligated to fulfill all the mitzvot, one is liable for killing him.

Although this phrase is found in the standard published text of the Mishneh Torah, the intent is difficult to understand. [The Rambam La’am explains that the intent is “in the early ages, before the exile of the Ten Tribes.” For from the time of their exile onward, the laws of a resident alien do not apply (Hilchot Issurei Bi’ah 14:8).] Significantly, authoritative manuscripts and early printings of the Mishneh Torah omit this phrase.

A gentile who has accepted the observance of the seven universal laws given to Noah and his descendants, and who is therefore given the privilege of living in Eretz Yisrael.

And a resident alien is not considered “your colleague.” This term refers only to a Jew.

Who has not accepted these seven universal laws.

I.e., one may use corporal punishment to influence a servant’s conduct.

If the blow is not sufficient to cause death, and the servant dies regardless, one is not liable, just as one would not be liable for the death of any Jew in this manner (Chapter 3, Halachah 1).

I.e., since he is his property, he has the right to strike him.

For if it is sufficient for him to survive one day, there is no need to mention “two”.

And not merely the daylight hours.

See Hilchot Chovel UMazik 5:3, which states that it is forbidden to strike a Canaanite servant belonging to some else. Since it is forbidden to strike him, one is liable for killing him in all instances.

See Chapter 4, Halachah 3.

This expression indicates a conclusion reached by the Rambam without an explicit source from the previous Rabbinic literature.

The Rambam’s logic is that the Torah did not give the owner permission to beat his servants wantonly and to inflict malicious wounds upon them. For such blows, there is no leniency.

For he has been sold.

As mentioned above, this leniency stems from Exodus 21:21, which states that the servant is “his [the master’s] property.” Bava Kama 90a explains that implied is that for the leniency to apply, the servant must belong solely to the master who kills him.

E. g., he had been owned jointly by two masters, and one released him from servitude, while the second did not.

For either the servant himself or the other owner also has a share in the rights to the servant.