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I recall reading a quote from Reb Yonason Eibshitz concerning a judge on a beis din of 23 faced with a strange situation. The defendant seems to the judge to be guilty of murder, but this judge is the last to cast his vote and all twenty two other judges said guilty. If this last judge says guilty, the defendant will go free. Reb Eibshitz therefore says he should say innocent so that what this judge believes is the correct judgment will be carried out. Does anyone know where I can find this?

Fwiw, the Or Hachaim in Mishpatim 23 2 says the exact opposite. This information is of interest to me as it pertains slightly to Choshen Mishpat siman 12 where the poskim mention a judge who wants to recuse himself by falsly saying he doesn't know how to rule in the hope that the new judges they add will tip the scale to justice.

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  • I think that he says this in a comment of megilat Ester
    – kouty
    Jan 11, 2020 at 21:45
  • See בית יעקב סי' טו, quoted in Piskei Teshuva; see also שבות יעקב ח"א סי' קלח, and Birkei Yosef יח-ד.
    – chortkov2
    May 10, 2020 at 18:33

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There are three places where Rabbi Eibschitz discusses this subject. I’m not sure which particular citation you are remembering, so I will post all three sources.

They all appear in volume two of Sefer Ya’arot D’vash.

The first appears in Drush 5 for the month of Elul, page 128 beginning with the words וידוע כי למעלה כו׳.

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The second occurs in Drush 8 for the 9th of Adar, page 185, beginning with the words ובימי חרפי הייתי אומר כו׳

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The third appearance occurs in Drush 13 for the 7th of Adar, page 305, beginning with the words אבל הענין כי אחרי רבים להטות כו׳

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    The second one is the only one which says this, the other two don't discuss it
    – wfb
    Jun 4 at 23:50
  • Yiyasher kochacha! I'm going to have to are with wfb, only the second one discusses this. I'm going to mark this as the accepted answer even though I'm pretty certain I had seen it in a different work of his which is what I was hoping for, but since this question has been open so long and your second source does answer it, I'll thank you with a check.
    – user6591
    Jun 5 at 0:08
  • Thank you and I’m glad I was able to help. So that you know, I went through 6 other seforim from Rabbi Eibschitz hoping that perhaps he discussed the subject there. I didn’t find mention anywhere other than Sefer Ya’arot D’vash. But my library only has 7 books from him. Perhaps there is another, not in my personal library.
    – Yaacov Deane
    Jun 5 at 3:22
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I don't know where this Reb Yonason Eibshitz is but if I recall correctly he was referring to a specific situation of a Beis Din of three where one Dayan realizes that the other two Dayonim are in collusion with one of the two sides. Under such circumstances, no matter who he thinks is correct the third Dayan should say "I don't know who is correct" which would require them to add another two Dayanim to the case. Even if he agrees with the side the other two Dayanim are in collusion with.

It is very unlikely that RYE was of the opinion that the 23rd Dayan should say different than his true opinion in a legitimate Beis Din. If he were supposed to do so then how would you ever fulfill that which the Torah says not to kill someone if all 23 Dayanim say guilty? Anytime the first 22 Dayanim said guilty the 23rd will say innocent whether he believes it or not.

Furthermore, if Dayan 23 saying innocent when he really thinks guilty is correct procedure why not do the opposite? Say Dayan 23 thinks innocent but all preceding Dayanim have said "guilty". If he also says guilty the defendant will go free, if he says innocent the defendant will be killed. So why shouldn't he also say guilty instead of innocent to save the defendant? But if that were the case then say Dayan 22 is in a situation where he thinks guilty and all previous Dayanim have also said guilty, why shouldn't he say innocent? That whether number 23 says innocent or guilty the defendant will be killed anyway...

The cycle will just keep on going and you no longer will have a Sanhedrin.

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