It is said about Rav Yisrael Salanter that in order to gain credibility in the eyes of the Lithuanian Lamdanim, so they would consider his encouragement to form mussar study groups, he would give an in-depth pilpul shiur.  Only after earning their esteem, all the way at the end of the shiur, he would say, “It is a good idea to form mussar vaads.”  (See Appendix to Shu”t Seridei Aish, where he gives his own oral history of the mussar movement.)  So every now and then, I like to do a lomdishe Psychology of the Daf, to give more credibility to some of my psychological and fanciful readings into the Gemara.

Our Gemara on Amud Beis mentions that capital punishments are administered outside the grounds of Beis Din (see Tosafos). The Gemara Sanhedrin (42b) offers two explanations for this practice:

כי היכי דלא מיתחזי ב"ד רוצחין א"נ כי היכי דתיהוי ליה הצלה

So that the court should not appear to be a court of killers. Alternatively, the reason the place of stoning must be distanced from the court is so that the condemned man might have a chance to be saved, i.e., so that during the time it takes for him to be taken from the court to the place of stoning someone will devise a claim in his favor.

We see from here that there is a principle of not appearing too hasty to execute a convicted person, either for its own sake of appearing bloodthirsty or to delay in the hopes of finding possible grounds for appeal. However this idea seem to be contradicted by another principle referenced in our Gemara on Amud Aleph :

 אוֹ הִיא אוֹ זוֹמְמֶיהָ מַקְדִּימִין לְבֵית הַסְּקִילָה

Either she or her conspiring witnesses are brought early in the morning to the place of stoning.

A simple reading of this clause implies that we hasten the administration of the death penalty and do not delay. 

This apparent contradiction might explain why Rashi here (“makdimin”) uses his famous “klomar - as if to say” phrase, which is known to be his signal for an implicit difficulty. Rashi here says:

מקדימין לבית הסקילה - כלומר ישכימו בבוקר לשם כי אין להם נס והמלטה מן המיתה הזאת:

As if to say, they should not expect any exemption and the punishment stands. 

Rashi seems to suggest we do not take the word “makdimin” literally, as in performing the execution first thing in the morning. Rather, it simply means we do not equivocate about the punishment. (Rashi was probably then referring to the fact that both false witnesses and the Na’ara Adulteress receive non-typical punishments. The false witnesses are executed despite the fact that they were caught before their intended victim received the punishment. The Na’arah adulteress receives a different death penalty than the typical adulteress. For another peshat in Rashi, see Shorshei HaYam on Mishneh Torah, Testimony 18.1 where he suggests that it is to counter the position of rabbi Akiva in Mishna Sanhedrin 9:1, that in punishments where the Torah states, “In order that they hear and learn to fear”, we wait until one of the three Regalim to make a public example.)

Tosafos Makkos (2a) quotes this opinion of Rashi, and also quotes another opinion of Rashi that we hasten the administration of the death penalty in order that we not prolong the person’s anguish. Tosafos rejects both interpretations because he does not see any chiddush or any need for the Beraisa to stress this point. Tosafos therefore learns that the stress on “makdimin” means literally first, not early. Which is to say, that since there is a principle that we give any legal death penalty even the non-standard penalty, if circumstances do not allow us to administer the standard penalty, we endeavor to give first (“makdimin”) the standard penalty. 

Sheyarei Korban (Jerusalem Talmud Sanhedrin11.6) asks on Tosafos’ peshat, if so, why state this point specifically by false witnesses, for it would be true by any capital matter?  Sheyarei Korban gives his own peshat for “makdimin”.  It is in a case where even if after the witnesses were found false and are to be executed, and then other witnesses come forward and rightfully convict the victim, now both the victim and the false witnesses are executed. The false witnesses executed “first”, as their transgression stands since they were proven to be lying about their testimony (others spotted them elsewhere at the time they testified that they saw the crime), even if subsequently the facts of their testimony was vindicated by other witnesses.

The Sheyarei Korban’s peshat is also adds a new way to read the original text of the beraisa which our gemara found difficult and had to amend.  The original text stated:

הִיא וְזוֹמְמֶיהָ מַקְדִּימִין לְבֵית הַסְּקִילָה

She and her conspiring witnesses are brought early in the morning to the place of stoning.

To which the Gemara asks:

הִיא וְזוֹמְמֶיהָ סָלְקָא דַּעְתָּךְ?! אֶלָּא: אוֹ הִיא אוֹ זוֹמְמֶיהָ מַקְדִּימִין לְבֵית הַסְּקִילָה.

Can it enter your mind to say that both she and her conspiring witnesses, i.e., witnesses who falsely testified that she committed adultery, are executed? If the witnesses who testified against her were telling the truth and she sinned, only she is liable to be stoned, and if the court discovers that they were false, conspiring witnesses, then they are stoned and she is exempt. Rather, the text of the baraisa should be amended so that it reads: Either she or her conspiring witnesses are brought early in the morning to the place of stoning.

According to the Sheyarei Korban, the original reading is now fine as they both can be executed. The false witnesses for their deceitful testimony, and the adulteress for her conviction by other witnesses.  (The Gemara may have known this technical answer, but prefered to amend the text to provide a more readable, more common case, but not because they thought the beraisa was invalid at face value.)

Shaul Lieberman (Tosefta Kefushuto Kesuvos 1:5) brilliantly suggests another peshat:

False witnesses are unique in that they only are executed when caught BEFORE the execution of their intended victim, but if the victim was executed and then the witnesses were proven false, they ironically are not executed. (See Makkos 5b and Psychology of the Daf, Kesuvos 26.)  The word “makdimin” to hasten their death, means that the false witnesses are executed first, that is, only before the death of the victim and not afterward.  This fits well with the general efforts of the Rabbis to thwart and contradict Tzadoki propaganda against halacha (see Makkos 5b and Mishna Parah 3:7 , as the Tzadokim followed the literal reading of the verse, executing false witnesses if they caused the death of the victim.

And finally, I will offer my own psychological answer to the contradiction between the principle of hastening the death and not wanting to appear as a killer court.  The action of taking space to perform the execution off grounds of Bais Din, even if it is to add a small delay, is merely symbolic. Bais Din is not “reluctant” to properly execute someone who is rightfully convicted. In fact, like all mitzvos, it should be done happily.  It is merely symbolic to allow for a small delay or a small distance to show that they WISH the evil was not committed and that they did not have to be in a position of enacting this form of justice. This is more similar to the drops of wine we take out of the cups when we recite the plagues on seder night.  After all, we are not too sad for the Egyptians. In fact, we recite the Az Yashir, which describes their defeat and drowning in painstaking detail.  We just want to show a symbolic distance from raw bloodthirsty sentiment. 

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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