A Hard Nachal – But What Is a Nachal?

Question #1: Valley Stream, Israel

What is a nachal eisan? A hard valley or a powerful stream? And what is a “hard valley”?

Question #2: Celebrating birthdays!

When does halacha consider it significant to know the birthday of a calf? Do we use the Hebrew birthday or the solar birthday (sometimes called the “secular birthday” or the “Gregorian birthday”)?

Question #3: Why now?

Why are we discussing these questions this week?

Introduction

When the brothers return from Egypt to tell Yaakov the exciting news that Yosef is, indeed, still alive, and that he is the ruler of the entire country, Yaakov does not believe them. Only when he sees the wagons that Yosef sent does he accept that the story is true. Why then? Chazal explain that the last subject Yaakov and Yosef had been studying together before Yosef so mysteriously disappeared was the topic of eglah arufah, and the four Hebrew letters that spell the word eglah could also be pronounced as agalah, wagon. Thus, Yaakov understood that only Yosef would be able to supply this hint, and that the story that the brothers were telling him was true.

This provides opportunity for us to study the detailed and difficult laws surrounding the mitzvah of eglah arufah. Let us begin with the description of this mitzvah as expressed in the Torah:

“Should you find, in the land that Hashem, your G-d, is giving you to inherit, someone slain, lying in a field – and it is unknown who killed him, your elders, your judges, must leave (the Sanhedrin) and measure to the cities that are near the corpse. The elders of that city bring a calf that has never been worked and that never pulled a yoke. The elders of that city bring this calf down to a nachal eisan (a term I will explain) that (asher in Hebrew) will not be worked and not planted, and there, in that nachal, they break the calf’s neck from behind. The kohanim, the sons of Levi, come forward, because Hashem, your G-d, chose them to serve Him and to bless in the Name of Hashem, and according to their word shall be every dispute and every nega (affliction of tzaraas). Then, all the elders of that city nearest the corpse shall wash their hands over the calf that was killed in the nachal. They then raise their voices, declaring, ‘Our hands did not shed this blood, and our eyes did not see. Atone for Your people, Yisroel, whom You, Hashem, have redeemed, and do not allow innocent blood to be shed among Your people, Yisroel.’ Thereby shall this blood be atoned” (Devorim, 21:1-8).

In the earlier article, which I sent out two weeks ago, we noted that there are five different aspects to the mitzvah, each incumbent upon a different participant:

(1) The finders of the fallen victim, who notify the main Sanhedrin, take care of the corpse, and, eventually, bury it.

(2) The representatives of the main Sanhedrin, who measure the distance from the fallen person to the nearby cities to determine which city is nearest the scene of the crime.

(3) The beis din of the city nearest the crime scene, which brings a female calf to a nachal eisan and performs the procedure described by the posuk.

(4) All the elders of that city, who wash their hands and make the declaration, “Our hands did not shed this blood and our eyes did not see.”

(5) The kohanim, who make the declaration, “Atone for Your people, Yisroel, whom You, Hashem, have redeemed, and do not allow innocent blood to be shed among Your people, Yisroel.”

In addition to the five groups obligated to fulfill the mitzvah of eglah arufah, there is another mitzvah that is incumbent on all of Klal Yisroel: a prohibition not to use the nachal eisan in the future.

In the previous article, we described the procedures through step (2) above. The members of the Sanhedrin have completed the measuring and have determined which city is nearest to where the victim fell. This city and, specifically, its beis din now become responsible for bringing the calf. We continue our discussion from this point.

The locals take over

The local beis din brings a female calf that is under the age of two (Parah 1:1, Rash ad locum; Rambam, Hilchos Rotzei’ach 10:2) to a place that the Torah calls nachal eisan, where that beis din performs a very unusual course of action (see below). Following this course of action, with all its details, is the main fulfillment of the mitzvah of eglah arufah, and is what atones for the local community’s negligence that allowed this tragedy to occur.

Age of calf

The calf must be before its second birthday, but it may be any age younger, as long as it is at least eight days old.

At this point, we can address the second of our opening questions: When does halacha consider it significant to know the birthday of a calf? Not in order to celebrate it with streamers and a birthday cake, but to know when it will be invalidated for use as an eglah arufah. Similar laws are germane to korbanos –  in those korbanos that allow use of an animal only up to a certain age, the age is determined by the birth date of the individual animal. Since the halacha in this regard deals with the Jewish calendar, it is important to keep track of the calf’s Hebrew birth date. Even though extensive information is kept of dairy cows in our day, including their vaccination and other full veterinary records, the Hebrew date is not used, even if the calf is owned by a frum farmer.

What is a nachal eisan?

At this point, let us examine our opening question: “What is a nachal eisan? A hard valley or a powerful stream?”

Rashi and the Rambam disagree concerning the definition of a nachal eisan. The Rambam explains it to be a strongly flowing stream (Hilchos Rotzei’ach 9:2), whereas, according to Rashi, it is a rocky valley that has never been tilled (Devorim 21:4; Sotah 46a, b; Pesachim 22a; Chagigah 19a). Their disagreement appears to be whether the word nachal in this context means valley (Rashi) or stream (Rambam). The Gemara (Sotah 46) explains that the word eisan means hard; thus, Rashi explains it to mean a hard, rocky valley, whereas the Rambam explains it to means a hard-flowing stream.

Nachal that is not eisan?

The Mishnah (Sotah 45b) rules that if they found an area that qualifies as a nachal, it can be used, even if it is not that hard. The requirement that the area be eisan, hard, is lechatchilah, preferred min haTorah, but not required. According to the Rambam, this means that they found a stream they could use, but the flow is not that strong; according to Rashi, it means a valley or dry wadi bed, but not necessarily a rocky one.

The Minchas Chinuch points out that the nachal eisan area must either be ownerless or be owned by the people of the city. This means that, having located a nachal eisan area, the beis din, or the members of the city, must determine if the area has an owner. If there indeed is one, they must purchase the property. No mention is made what they are to do if they find the owner to be as unscrupulous as Efron was in his dealings with Avraham. Presumably, they can continue to hunt for another nachal eisan, if they do not like his price. Assuming that there are two available areas, one hard and the other not, they should choose the hard area. However, if there is a major price differential between the two areas, I have no idea how much they are expected to spend for the harder area.

No local nachal

The Minchas Chinuch rules that if no nachal eisan was found in Eretz Yisroel, they could use one that is outside Eretz Yisroel. Although the mitzvah of eglah arufah applies only when the victim is found in Eretz Yisroel, the actual place where the procedure takes place can be anywhere. However, Rav Chayim Kanievski, in his monumental work Nachal Eisan, draws evidence from rishonim that several of them (Tosafos, Pesachim 52b s.v. ad; Tosafos Shantz, ad loc.; Sefer Hachinuch) held that the nachal eisan must be in Eretz Yisroel.

Washing and declaring

The beis din of the determined city is then responsible for having the calf slaughtered according to the method described here by the Torah. The next step is that the members of the beis din and all the older people of that city wash their hands in the place where the calf was killed. The Gemara rules that they must be careful to wash their hands directly above the place where the calf died (Sotah 46b).

The Rambam rules that the mitzvah of washing hands applies to “all the zekeinim of the city, even if there are a hundred,” without explaining what definition we use for “zekeinim.” Rav Chayim Kanievski explains that this includes anyone over the age of sixty who is able to make the trip (Nachal Eisan 14:3). He further discusses whether a woman above the age of sixty is also required to participate, and he is inclined to think that she is not.

This is presumably the only time where, outside of the Beis Hamikdash, there is a requirement min haTorah to wash your hands. According to Rav Chayim Kanievski, there is no requirement that they use a cup, nor that a revi’is of water be used, nor are the elders required to dry their hands afterwards. Rav Chayim rules that they fulfill the mitzvah even by dipping their hands into a pail of water (Nachal Eisan 14:4).

After washing their hands, the zekeinim make a declaration, “Our hands did not shed this blood and our eyes did not see.” However, if they made the recital the way I just quoted it, they did not fulfill the mitzvah, since the Mishnah (Sotah 32a) rules that it must be recited in Hebrew, exactly as the words of the posuk are written. This requirement exists, notwithstanding that we rule that both kerias shema and davening may be recited in any language that you understand (Sotah 32a)!

Care must be taken that the words are recited accurately and grammatically correctly, and that they are spaced in a way that the meaning is not confused (based on Yevamos 106b).

The Mishnah (Sotah 45b-46a) rules that the two pesukim mentioned by the Torah are divided into two units. The first posuk, “Our hands did not shed this blood and our eyes did not see,” is recited by the elders of the city, whereas the next posuk, “Atone for your people, Yisroel, whom You, Hashem, have redeemed, and do not allow innocent blood to be shed among your people, Yisroel,” is recited by the kohanim. Rashi explains that the source for this law is because the Torah instructs the kohanim to “come forward,” yet it does not clarify a specific role for them to play.

Just as in the case of the laws of the first posuk, the kohanim must recite this posuk in its original Hebrew.

The Mishnah (Sotah 45b) raises the following question: “Is anyone accusing the elders of the city of being the murderers of this unfortunate victim?” Why then must the elders make a statement that they did not shed his blood? The answer is that the city may have contributed to the death of the victim by not seeing adequately to his needs and safety. It is for this negligence that they are seeking atonement. The statement, “Our hands did not shed this blood and our eyes did not see,” means that nothing the townsmen could have done would have saved this unfortunate soul. There was nothing for them to have done that they failed to do.

Never be used

After the eglah arufah procedure is performed, it is prohibited to use the earth of this nachal. (According to the Rambam, this means either the riverbed beneath the stream, or its banks.) However, the area above ground may be used. To quote the Mishnah: “Its location may not be planted or worked, but it is permitted to comb flax there or to hew out stones” (Sotah 45b). Based on droshos in the words of the posuk, the Gemara (Sotah 46b) explains that it is prohibited to use the earth itself, which occurs when the ground is plowed or planted, but using the surface of the earth, or even mining it, is not called “using the earth.”As we mentioned above, the Mishnah rules that, after the procedure of eglah arufah has been performed, the area used, the nachal eisan, may never again be used. This prohibition is counted by the Rambam and the Sefer Hachinuch as a separate mitzvah of the 613. (In most editions of the Sefer Hachinuch, this is counted as mitzvah #531).

In this context, the Gemara (Sotah 46b) quotes the following beraisa: “Our rabbis taught: which (in Hebrew, asher) was not worked and not planted. This teaches that it is never again permitted to plant in this nachal. How do we know that other types of work are prohibited? Because the Torah states, which was not worked, meaning any type of work. If so, why did the Torah previously state, which was not planted? This teaches us that, similarly to planting, which uses the ground itself, the Torah is prohibiting only activity using the ground itself. This excludes combing flax or removing stones, which do not use the ground itself,” and are therefore permitted.

In conclusion, the Torah’s prohibition applies only to using the nachal eisan for agricultural purposes. Thus, it is permitted to build a shopping mall on top of the nachal eisan and make the land worth billions of dollars!

There is halachic discussion whether whatever grows from what was planted in violation of the law is prohibited from use. According to most authorities, what grows there is prohibited, and it is even prohibited to use the produce for any benefit, including selling it to non-Jews or as animal feed (see Sefer Kerisus, at end; Pri Chodosh, Yoreh Deah 110:13; however, see Minchas Chinuch).

Does the prohibition include harvesting vegetation that has already grown there or subsequently grows on its own? The Minchas Chinuch concludes that it does not, since reaping does not use the land, and the Torah mentions specifically working the earth and planting, which do not seem to include harvesting.

It is also implied by this discussion that there is no prohibition in walking on or through the nachal eisan, even to use it as a shortcut to get from place to place. This is not considered using the soil of the nachal eisan.

Past use?

Must the nachal eisan be an area that was never used in the past? This is a dispute among late tanna’im, as quoted by the following Gemara: “Our rabbis taught: ‘that (asher in Hebrew) will not be worked and not planted.’ This means that the area was never used in the past – these are the words of Rabbi Yoshiyah. Rabbi Yonasan says, ‘in the future.’ Rava explains, ‘Everyone agrees that it cannot be used in the future, because the verse uses the future tense – “will not be worked.” Their dispute regards only the past’” (Sotah 46b). The Gemara’s conclusion is that the word asher in the posuk could be interpreted to mean that, not only can this property never again be used in the future, but it had never been used in the past, either. This is the dispute between Rabbi Yoshiyah and Rabbi Yonasan.

Conclusion

One of the many rules of eglah arufah is that the mitzvah applies only when the victim was found lying open — unburied by the murderer. In Rav Hirsch’s analysis (Commentary to Devorim, 21:1), this means that leaving the victim exposed, as the perpetrator did, demonstrates a shocking lack of concern for society, a mockery for any authority. (Since I cannot do justice to Rav Hirsch’s beautiful explanation and analysis, I recommend that our readers examine it themselves.)

Based on an extensive analysis of both Talmudim’s explanations of aspects of the mitzvah, Rav Hirsch explains that the concept of eglah arufah is for the elders of the city to declare that this city takes care of the needs of all travelers who pass through, and also provides properly for all its residents. Severe poverty should not exist in a community – at least not to the extent that it can be used to excuse a crime.

Thus, although we sincerely hope that the mitzvah of eglah arufah is never observed, we should always learn from its lessons!

Eglah Arufah

Photo by Alexander Wallnöfer from FreeImages

Question #1: Which Cities?

What are the requirements for a city to be obligated in eglah arufah?

Question #2: Where?

How do we measure to determine the obligation of eglah arufah?

Question #3: Why Now?

Why are we discussing this mitzvah this week?

Background

Chazal teach us that the last subject Yaakov and Yosef had been studying together before Yosef so mysteriously disappeared was the topic of eglah arufah. This provides opportunity for us to study the very detailed and difficult laws surrounding the mitzvah of eglah arufah. Let us begin with the description of this mitzvah as expressed in the Torah:

“Should you find, lying in a field, someone slain in the land that Hashem, your G-d, is giving to you to inherit – and it is unknown who killed him, your elders, your judges, must leave (their usual location) and measure the distance from the cities that are near the corpse. The elders of the closest city bring a calf that has never been worked nor pulled a yoke. The elders of that city bring this calf down to a ‘hard’ valley that will not be worked and not planted, and there, in that valley, they decapitate the calf. Then, the kohanim, who are the sons of Levi, come forward, because Hashem, your G-d, chose them to serve Him and to bestow blessing in the Name of Hashem, and by their mouths will be decided all disputes and all matters germane to nega’im. Subsequently, all the elders of that city that is nearest the corpse shall wash their hands over the calf that was decapitated in that valley. They then raise their voices, declaring, ‘Our hands did not shed this blood, and our eyes did not see. Atone for Your people, Yisroel, whom You, Hashem, have redeemed, and do not allow innocent blood to be shed among Your people, Yisroel.’ Thereby, shall this blood be atoned” (Devorim, 21:1-8).

The words of this posuk are carefully analyzed in Torah she’be’al peh. To review: A terrible calamity occurred to the Jewish nation. A murder has taken place, and, to make matters worse, indications are that a Jew was the perpetrator. How do we see that it is appears that a Jew was the murderer? Firstly, the halacha is that if there were non-Jews near the murder site, no eglah arufah is offered, based on the supposition that it was a non-Jew who performed the crime (see Sotah 44b, according to the version quoted by the Rambam; see also Tosafos, Bava Basra 23b s.v. beyosheves, and Minchas Chinuch #530). In addition, should the victim have fallen near the Jewish country’s borders, no eglah arufah is offered, under the assumption that he was murdered by a foreign intruder (Mishnah, Sotah 44b). Furthermore, in an unfortunate era when there were gangsters among the Jewish people, no eglah arufah was offered either, since the assumption is that one of the gangsters performed the heinous crime, and the eglah arufah is only offered when there is no knowledge about the perpetrator’s identity (Mishnah, Sotah 47a).

There are several questions relating to these pesukim that we will discuss. For example, the verse goes to great length to describe the role of the kohanim in the Jewish people, yet it does not say what function they perform in the eglah arufah procedure. (The answer to this question will need to wait until our sequel.) Also, we should note that there are three different descriptions of elders in the pesukim: At first it refers to “your elders, your judges,” then it refers to “the elders of that city,” and lastly it refers to “all the elders of that city.” These seem to be three different categories of elders. Indeed, we will soon see that this is exactly the situation.

Should the murderer be apprehended, no eglah arufah is offered. Since no murderer has yet been caught or suspected, the community from which it is most likely that the murderer came is required to atone for itself. This atonement procedure is the fulfillment of the mitzvah of bringing an eglah arufah, which is counted by the Sefer Hachinuch as mitzvah number 530. If the procedure of the eglah arufah has already been performed, and subsequently the murderer is identified in a way that halacha rules that he be punished, the regular punishment is carried out (Mishnah Sotah 47a). The purpose of the eglah arufah is to atone for the negligence of the community and its leadership, not for the murderer.

Details, details

There are several different stages involved in fulfilling the mitzvah of eglah arufah, each of which is performed by a different group of people. The first step is the responsibility of those who find the corpse. Contemporary society would expect them to call the police department to file a criminal report, and the police would contact the coroner’s office to examine the corpse. However, the halachic instructions are quite different. Those who find the victim send a notification to the Sanhedrin, wherever it is headquartered, to send representation to the location of the fallen individual (Minchas Chinuch #530). The corpse is not moved in the slightest, and the examination of the crime is performed only by observation. In order to make sure that the meis has a proper burial place, the halacha requires that he be buried in the place he was found, a halachic principle called meis mitzvah koneh mekomo, which literally means that someone who dies without next of kin nearby or available to guarantee proper burial has an automatic legal right to be buried in the place where he was found, unless it is a place that causes public inconvenience (Eruvin 17a, b). The Gemara explains that this was one of the ten rules that Yehoshua established when he led Klal Yisroel into Eretz Yisroel (Bava Kama 81a).

Three groups of elders

Above it was noted that the posuk mentions three groups of elders:

1. “Your elders, your judges,” who “must leave and measure the distance from the cities that are near the corpse.” This refers to the Sanhedrin, the main court of the Jewish people, responsible for the continuity of the Torah she’be’al peh and for all regulations regarding the Jewish people. They send a group of their members from Yerushalayim, or their headquarters, to oversee the measuring from the fallen victim to the nearby cities to determine which is closest.

2. “The elders of that city,” who become responsible for the proceedings once it is determined which city is closest to the victim of the crime.

3. “All the elders of that city,” which, according to the Rambam, includes even senior citizens who are not necessarily scholars. The members of this group are required to wash their hands and to make a declaration of their innocence.

The arrival of the members of the Sanhedrin

The Rambam rules that we leave the corpse in place until a representative body of the Sanhedrin arrives. Bearing in mind that, in his opinion, this could take many weeks until it happens, this seems very unusual, as we usually bury someone as soon as possible, unless the dignity due the departed requires that we wait for the arrival of next-of-kin or a larger turnout at the funeral. Here, the delay will not result in either of the above; yet, in the Rambam’s opinion, we delay.

How long can this delay be? Allow me to calculate. The mitzvah of eglah arufah applies anywhere in Eretz Yisroel, including the large area on the eastern side of the Jordan River (Sifri; Rambam, Hilchos Rotzei’ach 10:1). We know that the most distant places in Eretz Yisroel were fifteen days travel time from Yerushalayim (Mishnah Taanis 10a). Granted that the Mishnah there is calculating the time it takes a family to travel, we can shave off a few days of travel time, but not much more, since we know that beis din’s messengers could still take about twelve days to get to the most distant parts of Eretz Yisroel (Rambam, Hilchos Kiddush Hachodesh 5:4, 6). Therefore, it could take at least twelve days after the discovery of the corpse until the locals get a message to the Sanhedrin to send its representatives. After the Sanhedrin chooses the members for this mission, if the city is this far removed from Yerushalayim, it could take at least twelve more days for the delegation to arrive. Thus, we can easily have a situation in which the corpse has been left for almost thirty days until burial according to the approach of the Rambam (Minchas Chinuch).

What happens to the corpse during these many weeks of waiting? All the rules of kovod hameis apply, other than allowing no delay to bury him. Since he must be left in situ in order not to bias the measurements, there is a requirement to provide shemirah on the body by day and by night, firstly for the human honor due him, and secondly to make sure that animals and insects do not feed on him. Thus, in this situation the requirement of meis mitzvah requires that people be available to be shomeir this meis outdoors, wherever he was found, 24/7, for up to and perhaps more than thirty days, regardless of the weather conditions! We should also note that, according to the opinion of Rabbi Eliezer ben Yaakov that we will soon cite, the wait could be considerably longer.

Several acharonim (Chasdei Dovid, Minchas Chinuch) question the Rambam’s ruling that the corpse must be left in situ until the representatives of the Sanhedrin arrive. The text of the Tosefta (Sotah 9:2) implies otherwise: As explained by the Chasdei Dovid, when the corpse is located, the Tosefta rules that a nearby beis din sends representatives to mark the exact point from which we are going to measure. Then, the meis is buried in place, because of the principle of meis mitzvah koneh mekomo. The Sanhedrin members, when they arrive, measure not from the meis himself, who has already been buried, but from the marker on the gravesite that indicates the pinpointed location from which they are to measure. The Talmud Yerushalmi (Sotah 9:1) quotes this Tosefta, yet the Rambam rules otherwise.

Three, five or more?

There is a dispute among tanna’im how many members of the Sanhedrin are required to come: According to Rabbi Shimon, three members, and according to Rabbi Yehudah, five (Sotah 44b; Sanhedrin 2a, 14a). The Rambam rules according to Rabbi Yehudah, requiring five members of the Sanhedrin to come to the site of the murder (Hilchos Rotzei’ach 9:1).

There is a third tanna, Rabbi Eliezer ben Yaakov, who requires a very large representation of the Jewish people, including the king, the kohein gadol and the entire Sanhedrin, not just three or five representatives (Sotah 45a). As I mentioned above, his opinion could potentially cause an even greater delay until the Sanhedrin arrives to measure the distance to the nearby cities, since both the king and the kohein gadol may have other obligations, and the king could be away on a war or other affairs of state.

However, Rabbi Eliezer ben Yaakov’s position is not accepted as normative halacha, evidenced by the fact that the Mishnah, which discusses this issue in two different places, does not even mention his opinion. The Rambam, also, does not rule this way, but requires only five members of the Sanhedrin, unaccompanied by either the king or the kohein gadol.

Where is the Sanhedrin?

Until the destruction of the Beis Hamikdosh, the Sanhedrin was always located either in a special chamber on the grounds of the Beis Hamikdosh or somewhere nearby. After the destruction of the Beis Hamikdosh, the Sanhedrin went through a series of relocations, first to Yavneh, and then to different places mostly in the Galil, including Shafra’am, Beis She’arim, Tzipori, Usha and Teveryah (Rosh Hashanah 31). The Minchas Chinuch (530) rules that there was a law of eglah arufah during all these periods. This would indicate that the Mishnah in Sotah 44b, which states that the Sanhedrin members left from Yerushalayim, is an old Mishnah dating back to the time of the Beis Hamikdosh and not from the time of Rabbi Yehudah Hanasi, in whose day the Sanhedrin was already in Teveryah, the last of its ten relocations.

Next mitzvah: Measuring

There is a mitzvah to measure even when the corpse is found right outside one city, such that it is completely unnecessary to measure to determine which city is closest (Sotah 45a; Rambam, Hilchos Rotzei’ach 9:1).

Since this measurement is a Torah requirement, it must be done very precisely (Eruvin 58b; Rambam, Hilchos Rotzei’ach 9:4). Regarding other halachos involving measurement of distance, such as the techum Shabbos around a city or village within which one may walk on Shabbos, we do not measure the elevations of hills around the city, but have various halachically approved methods of estimating and shortening these distances. In other words, techum Shabbos is measured as the crow flies.

These rules do not apply to eglah arufah. In this instance, the measurements must be exactly how far it would take someone to walk this distance. In other words, the distance is measured not as the crow flies, but as the person walks.

Must they measure it themselves?

Are the members of the Sanhedrin themselves required to measure the distance from the corpse to the nearest city, or is it sufficient if they supervise the measuring? The Minchas Chinuch rules that they are not required to perform the actual measurements, but they must oversee those who are measuring.

There are several unusual laws germane to the mitzvah of measuring. We measure to the largest cities from which it is likely that the murderer came. If there are smaller cities nearby, they are ignored (Rambam, Hilchos Rotzei’ach 9:6, based on Bava Basra 23b). If the nearest city includes a non-Jewish population, no measurement and no mitzvah of eglah arufah are performed (Rambam, Hilchos Rotzei’ach 9:5), and if the nearest city is Yerushalayim, there is no mitzvah of eglah arufah (Bava Kama 82b).

Is beis din a liability?

One of the unusual rules is a statement of the Mishnah that the measurement is done only towards a city that has a beis din (Sotah 44b). This implies that if there are large, populous, completely Jewish cities near the corpse that do not have a beis din, we do not measure from the corpse in the direction of that city, but instead, we measure to a more distant city that has a beis din. The question, raised already by Tosafos (Bava Basra 23b s.v. bedeleika), is that the lack of a beis din does not demonstrate that the murderer was not a resident of that city. Thus, if our goal is to determine which city most likely produced the murderer, the farther city should not thereby be required to bring an eglah arufah. This question has created much literature, but, to the best of my knowledge, there is no universally accepted approach to answer it.

The measure of a man

From which point on the victim’s body do we measure? The Mishnah (Sotah 45b) quotes a three-way dispute among tanna’im discussing exactly from which point on the victim’s body we measure. According to Rabbi Eliezer, we measure from the navel, which is where he first acquired nourishment before birth. In Rabbi Akiva’s opinion, we measure from the nostrils, which is the place from which a person draws his breath. Rabbi Eliezer ben Yaakov rules we measure from the neck, which he bases on his understanding of a posuk. The Rambam concludes that we follow Rabbi Akiva and measure from the nostrils.

According to the above-referenced Tosefta, those who found the body buried it in situ immediately, but were careful to mark the exact place where his nostrils were at the moment they found him. The elevation at which the body was found is also a factor in the measurement. This means that they needed to measure carefully the height at which they found him, not only his location on the ground before they buried him.

I will be sending the sequel to this article in two weeks.

Conclusion

The Sefer Hachinuch explains one of the reasons for the mitzvah of eglah arufah is that it teaches communal responsibility. The elders of the Sanhedrin are required to send a representation of either three or five members to personally oversee the measurement from the victim to the nearest city. After they complete their measurement, the city thus indicated must send out all its elders to participate in what can only be described as a very unusual ceremony. Certainly, they cannot declare innocence before Hashem unless they are certain that they provide every wayfarer with adequate security and provisions. Thus, the elders of the city must always be responsible for whatever happens in their city, not only among the residents, but even among the visitors.

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