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When capital punishment was possible, could a beit din try and sentence a non-Jewish defendant that committed a capital crime? Or would a non-Jew whose transgression affected Jews never be tried by a beit din in the first place?

This question takes as given that a beit din can execute a non-Jew (and asks about a specific method), but I understand from the rules given in Sanhedrin that, among the requirements for conviction, the witnesses must have warned the accused that "you are about to transgress a commandment subject to the death penalty" and the accused must reply "yes I know and I accept it". This sounds like it could only be said to Jews (to whom the commandments apply), but maybe it depends on the transgression -- there are Noachide prohibitions on murder and adultery but not Shabbat violation, for example.

So my question is: could a non-Jew be convicted of a capital offense by a beit din and, if so, for which offenses? For example, could a non-Jew who murdered Jews be sentenced to death by a beit din, if we had one with the authority to handle capital cases? I know we don't have such a beit din today; I'm curious about how it would work in theory or (if we know) how it actually worked in practice.

  • 1
    THis question is far more fascinating than I originally thought! It is very basic and should be formulated properly. How far are you willing to go to find out the answer? – Al Berko Oct 30 '18 at 11:38
  • Would be nice in view of what recently occurred near you. I have a feeling that the federal courts will handle this properly, though. – DanF Oct 30 '18 at 14:44
  • @DanF not looking for practical advice; it just made me wonder how this would have been handled if we had the sanhedrin today. – Monica Cellio Oct 30 '18 at 14:49
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Rambam writes in Hilchot Melachim uMilchamoteihem 9:14 that non-Jews are commanded to establish courts to try those that transgress the seven Noachide commandments (which include murder).

A non-Jew can be convicted on the basis of a single witness’ testimony, and there is no requirement to warn him first. The punishment for transgressing any of the Noachide laws is death by sword (with a few exceptions) (ibid).

He also writes (ibid 10:11) that Beit Din is enjoined to see that there are courts available to judge geirei toshav (i.e. non-Jews who have accepted to keep the seven Noachide commandments) and those courts can have Jewish or non-Jewish judges.

So, a Beit Din will not directly impose capital punishment on non-Jews, but may appoint special courts to judge them, who can certainly impose capital punishment for transgressions of the Noachide commandments, without the requirement for warning.

  • cf. Sefer Hachinuch Mitzvah # 192: וכלל זה יהיה בידך בכל מה שנצטוו האומות שכל זמן שהן תחת ידינו עלינו לעשות דין בהם בעברם על מצותם וכבר כתבתי למעלה בסדר וישמע יתרו שהדין שלהם לעולם היא מיתה בין מזידין בין שוגגין ושאין צריכין התראה אבל שני עדים צריכין או הודאת פיהם ומן הדומה שאע"פ שהם אינם כשרין להעיד על ישראל ראויים הם להעיד זה על זה וכן הורה זקן – Alex Oct 28 '18 at 22:13
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    @Alex Post it as a complementing answer – Al Berko Oct 29 '18 at 12:08
  • First 3 paragraphs are citations but the last one [seems to be] you personal conclusion - and it should be stressed as such. – Al Berko Oct 29 '18 at 12:13
  • Quite interesting. Why are the rules for B'nai Noach more strict than for Jews, here? Jews need to be warned first but B.N. don't? – DanF Oct 30 '18 at 14:46
  • @DanF Take a look at Sanhedrin 57b. The gemara there derives this from a pasuk. – Joel K Oct 30 '18 at 17:09
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This is not a halachic source, but Josephus brings down in his Antiquities that Herod (An Edomite, so not Jewish, but possibly technically a גר תושב) was tried and sentenced to death before a "Sanhedrin" for killing Jews without a trial.

I use "Sanhedrin" in quotes, because by this time there was a lot of corruption in government (not to mention a very strong צדוקי movement), so this might not have been done strictly according to הלכה.

Nevertheless, Josephus mentions a "Sameas" (identified as שמאי -- of the zugot) as being a member of this Sanhedrin, so maybe this is a legitimate anecdotal source?

Josephus

for Herod, Antipater's son, hath slain Hezekiah, and those that were with him, and hath thereby transgressed our law, which hath forbidden to slay any man, even though he were a wicked man, unless he had been first condemned to suffer death by the Sanhedrim yet hath he been so insolent as to do this, and that without any authority from thee.

...

But when Hyrcanus saw that the members of the Sanhedrim were ready to pronounce the sentence of death upon Herod, he put off the trial to another day, and sent privately to Herod, and advised him to fly out of the city, for that by this means he might escape.

  • Very interesting! To me, while it seems very probable politically and socially it sounds less probable Halachicly, as you mentioned because it is not clear how the "Sanhedrin" functioned if anything. – Al Berko Oct 31 '18 at 12:32
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My first answer was philosophical, this one is more Halachic. After spending a couple of hours in our Kolel researching the subject we've come up with some findings:

1. Learning straight from the Torah:

I couldn't find a clear view of Poskim on the subject (if Rambam does not deal with that - nobody does), but there's a consensus of the Torah commentators that Jews are allowed to [judge and] execute NJs as we learn it from Parashat Dina (Gen 34). They agree that all male residents of Shechem were killed by being judged and sentenced to death, they only slightly disagree on what ground.
The problem is that nobody mentions where exactly they were sentenced - what BD if anything. We also see that Yaakov disagreed but unclear on what (but not on the fact the residents were judged for sure).

Another example is Moses killing an Egyptian that beat a Jew. Moses witnessed the action and sentenced him to death and executed him. Here also, nobody argues on the fact that Moses judged and sentenced and executed only the execution was verbal and that opens additional possibilities of interpretation.

The problem with those examples that they were before Matan Torah and we always can claim the laws were different.

3. Learning from Gemmorah

We can learn "circumstantially" from the [very existence of the] Sugya of "אין עד נעשה דיין" B"B 113, that discusses if a Jew who saw a NJ committing a crime can be the [one] judge to judge [and therefore] sentence him.

3. Learning from Rambam

Rambam rules numerous capital offenses for NJ incl. 7 Noahide laws, beating Jews or having relations with Jewish women or for keeping Shabbos, using different languages, such as "חייב מיתה" or "נהרגעליו" etc. But he never mentions how the judgment should be carried out and by whom.

Also, when Rambam rules about our responsibility for establishing NJ courts (see @Joel's answer) in Hilchot Melachim is unclear when it applies, seemingly, only in times when we are able to (or maybe in this time, like the Chabad's initiative of 7 Noahide Mitzvos).

3. Learning from Chinuch and Minchas Chinuch

Chinuch Mitzvah 409 ("one cannot be executed unless he stands a trial") claims interestingly that "those Mitzvos do not apply to NJ". Once again, it is not a clear answer to your question, but from that statement, we can learn קל וחומר as many Poskim ruled (resolving "אין עד נעשה דיין" negatively - one can be a witness and a judge at the same time) that a Jew is allowed to execute an NJ, representing "a whole court" and an executor.

So if one Jew can be a court, an NJ can surely be brought to a "real" court.


I worked a lot on this answer, please respect. Also, please don't downvote it just because you disagree or you don't like the conclusion - use comments.

  • Thank you for researching this and compiling these sources. – Monica Cellio Oct 31 '18 at 14:38
-1

You're [probably] not gonna like what I'm saying, but I need to address this issue from a different angle.
This clarifies both Joel and Alex's answers.

Your question boils down to another question:
do the Jews [theoretically] have legal jurisdiction upon NonJs?
(For the sake of this question, I will only address the capital crimes, not monetary ones).

In the theory of Judaism, a "hierarchy of species" is held, so to say, and the way all the flora is subjugated to the animal kingdom and all the animal kingdom is subjugated to the humans, within humans, there are NJs and Jews etc. והמבין יבין.

In practice, according to my understanding, there are 3 states of the world:

  1. The Jews are in exile and are subjugated to other nations (currently in the USA and all over the world inc. Israel).
  2. The Jews have an independent government alongside the Gentiles (like a kingdom or autonomy in the times of Second Temple)
  3. The Jews rule over the whole world and all nations are [willingly] subjugated to the Jewish King (maybe in the times of King Salomon and in the days of Moshiach to come).

Accordingly, there are 3 levels of jurisdiction:

  1. No Halachic power to judge NJs
  2. Some Halachic power to judge NJs to the extent sanctioned by the NJ Malchut.
  3. Full legal power, incl. judging and executing NJ in our courts with both capital and monetary crimes and appointing other NJ courts (as Joel and Alex brought Rambam and Chinuch).

Also, it is true, as you and Joel mentioned, that NJ being judged in our courts (#3) requires fewer claims for conviction - no warning and only one witness.

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