לזכות א"מ ר' יצחק יונה בן חנה
א"מ מרת הענא מרים בת חנה
The Torah teaches in Parsha Re'eh that when one subverts [מסית] someone else to serve idols [the ניסת], his execution is carried out by the ניסת and not by the witnesses as is normally the case. ידך תהיה בו בראשונה להמיתו ויד כל העם באחרונה. What is the din if the ניסת doesn't kill him?: Do we say that we revert to the regular procedure and the witnesses kill him and only then the rest of the people. Or no, since we find a חריגה [anomaly] here that the ניסת carries out the death penalty, we say that he rules are changed and the witnesses don't get involved.
The Rambam in Hilchos Avoda Zara [5/4] says nothing about the witnesses or anybody else, just that the ניסת executes the מסית.
There is another anomalous case and that is the רוצח בשוגג who is killed by the גואל הדם [and not by the witnesses]. What about the witnesses doing the job if the גואל הדם doesn't??
The Rambam says [Sanhedrin 13/1] that when one is רוצח במזיד then the witnesses kill him. So even though the din is that first comes the גואל הדם, if he doesn't do the job then the witnesses come next and if they don't do it then בית דין has him executed by the people.
So we can say that just like in the anomalous case of רוצח we rule that the witnesses take precedence over others, so too in the case of the מסית.
The Rambam writes [Sanhedrin 14/8]:
When a convicted person fights for his life and it is impossible for the court to have him bound so that he can be executed in the manner in which he is obligated to die, the witnesses should kill him in any manner they can, for he has been sentenced to death. No one else, however, has the right to kill him first.
For this reason, if the hands of the witnesses are cut off, the convicted person is released [the pasuk says that the hands of the witnesses carry out the punishment, meaning that if they lost their hands he is freed]. If, however, at the outset, the witnesses did not have hands, the convicted person should be executed by others.
When does the above apply? To all people who are liable to be executed by the court with the exception of a murderer. When, however, a murderer has been sentenced by the court every person should pursue him using any means possible to kill him until he is executed.
The Rambam implies that in all cases of מחוייבי מיתת בית דין including מסית, the witnesses come first in carrying out the punishment in any way they can and only then the rest of the people. Therefore, if the hands of the witnesses were severed, the convicted person is released.
When it comes to a murderer the Rambam writes that the din is that even if the hands of the witnesses were severed, he is still executed by the rest of the people. Why is a murderer different?
Explains the Chazon Ish that since the mitzva is initially done by the גואל הדם and the Torah revealed that it is not critical [מעכב], the hands of the witnesses is also not critical because what is only secondary [יד העדים] shouldn't be more stringent that what is primary [גואל הדם]. Also, the witnesses can be compared to גידמין מעיקרא - those who lack hands to start with [where the din is that the convicted person is killed] because the mitzva devolves on the גואל הדם and not on the witnesses from the very outset.
Now when it comes to the מסית, the primary mitzva is to be done by the ניסת and the Torah teaches that it is not critical that he do it, so we should say that the hands of the witnesses are not critical because what is secondary [יד העדים] should be more severe than what is primary [ניסת who isn't מעכב] and also the witnesses should be considered like גידמין מעיקרא [as we said regarding רוצח]. However, from a cursory reading of the Rambam it would seem that this is not the case and that the hands of the witnesses being severed removes the punishment like all of מחוייבי מיתת בית דין?! Why?
Or in the holy tongue:
[See רינת יצחק תליתאה page 231 for further discussion]
