Not to incline after the many in capital punishments because of one: That a judge should not go after the opinion of the majority in capital punishments when the difference will only be one man. (See Sefer HaMitzvot, Negative Commandments 282.) And the elucidation of this is that when there is a disagreement among the judges about the case of a man, and some say that he is liable for the death penalty and some say that he is not liable — and those who [would] make him liable are one more than those who [would] make him innocent — that the judge should not do with the [suspected] sinner according to the words of those who make him liable; as it is stated (Exodus 23:2), “Do not be after the many to do bad” — meaning to say, do not go after the majority that would result in concluding a verdict of death. And this is the expression stated in the Scripture, “to do bad” — meaning to say, to a liability for the death penalty. And that is when there is an exact majority, meaning to say that the decision is only because of one person. But if the decision is with two, we follow their words, even “to do bad.” And in the Mekhilta DeRabbi Yishmael 23:2, “Leaning to the good is according to one, but to the bad is according to two.”
It is from the roots of this commandment [that it is] since we have been commanded to resemble the characteristics of God, blessed be He, in our actions. And among His traits is that He is of great kindness, meaning that He goes beyond the letter of the law with people. And [so] we too are commanded about this, that innocence be greater than liability in capital cases, as it is something that has no repayment. And the judgments of the commandment are in the fourth chapter of Sanhedrin, as we have written above in the positive commandment of inclining towards the many (Sefer HaChinukh 78). And one who transgresses it and makes [someone] liable with a majority decided by one, has violated the commandment of the King. And his punishment is very great, as he caused the loss of a soul not in accordance with the law.
שֶׁלֹּא לִנְטוֹת אַחֲרֵי רַבִּים בְּדִינֵי נְפָשׁוֹת בִּשְׁבִיל אֶחָד – שֶׁלֹּא יֵלֵךְ הַדַּיָּן אַחַר דַּעַת הָרֹב בְּדִינֵי נְפָשׁוֹת כְּשֶׁיִּהְיֶה הַתּוֹסֶפֶת אִישׁ אֶחָד לְבַד (עי' סהמ"צ להרמב"ם ל"ת רפ"ב). וּבֵאוּר זֶה כִּי כְּשֶׁתִּהְיֶה מַחְלֹקֶת בֵּין הַדַּיָּנִים בְּדִין אָדָם אֶחָד וְיֹאמְרוּ קְצָתָם שֶׁהוּא חַיָּב מִיתָה וּקְצָתָם שֶׁאֵינוֹ חַיָּב, וְהָיוּ הַמְּחַיְּבִין יוֹתֵר עַל הַמְּזַכִּין אֶחָד, שֶׁלֹּא יַעֲשֶׂה הַדַּיָּן בַּחוֹטֵא כְּדִבְרֵי הַמְּחַיְּבִין, שֶׁנֶּאֱמַר (שמות כג ב) לֹא תִהְיֶה אַחֲרֵי רַבִּים לְרָעֹת, כְּלוֹמַר לֹא תֵּלֵךְ אַחַר הָרֹב שֶׁיִּזְדַּמֵּן לַחְתֹּךְ מִשְׁפַּט מָוֶת, וְזֶהוּ לְשׁוֹן הַכָּתוּב שֶׁאָמַר לְרָעֹת, כְּלוֹמַר לְחִיּוּב מִיתָה, וְזֶהוּ כְּשֶׁיִּהְיֶה רֹב מְצֻמְצָם, כְּלוֹמַר שֶׁהַהֶכְרֵעַ אֵינוֹ אֶלָּא מֵחֲמַת אִישׁ אֶחָד. אֲבָל כְּשֶׁיִּהְיֶה הַהֶכְרֵעַ בִּשְׁנַיִם אֲפִלּוּ לְרָעֹת מַטִּין עַל פִּיהֶם, וּבַמְּכִילְתָּא הַטָּיָתְךָ לְטוֹבָה עַל פִּי עֵד אֶחָד, וּלְרָעוֹת עַל פִּי שְׁנַיִם.
Not to incline after the many in capital punishments because of one: That a judge should not go after the opinion of the majority in capital punishments when the difference will only be one man. (See Sefer HaMitzvot, Negative Commandments 282.) And the elucidation of this is that when there is a disagreement among the judges about the case of a man, and some say that he is liable for the death penalty and some say that he is not liable — and those who [would] make him liable are one more than those who [would] make him innocent — that the judge should not do with the [suspected] sinner according to the words of those who make him liable; as it is stated (Exodus 23:2), “Do not be after the many to do bad” — meaning to say, do not go after the majority that would result in concluding a verdict of death. And this is the expression stated in the Scripture, “to do bad” — meaning to say, to a liability for the death penalty. And that is when there is an exact majority, meaning to say that the decision is only because of one person. But if the decision is with two, we follow their words, even “to do bad.” And in the Mekhilta DeRabbi Yishmael 23:2, “Leaning to the good is according to one, but to the bad is according to two.”
מִשָּׁרְשֵׁי מִצְוָה זוֹ, לְפִי שֶׁנִּצְטַוִּינוּ לְהִתְדַּמּוֹת בְּמַעֲשֵׂינוּ לְמִדּוֹת הַשֵּׁם בָּרוּךְ הוּא, וּמִמִּדּוֹתָיו שֶׁהוּא רַב חֶסֶד, כְּלוֹמַר שֶׁעוֹשֶׂה עִם בְּנֵי אָדָם לִפְנִים מִשּׁוּרַת הַדִּין, וְגַם אֲנַחְנוּ נִצְטַוִּינוּ בְּכָךְ שֶׁיִּהְיֶה הַזְּכוּת בְּדִינֵי נְפָשׁוֹת יוֹתֵר עַל הַחִיּוּב, לְפִי שֶׁהוּא דָּבָר שֶׁאֵין לוֹ תַּשְׁלוּמִין. וּמִשְׁפְּטֵי הַמִּצְוָה, בְּפֶרֶק רְבִיעִי מִסַּנְהֶדְרִין, כְּמוֹ שֶׁכָּתַבְתִּי לְמַעְלָה בְּמִצְוַת עֲשֵׂה שֶׁל אַחֲרֵי רַבִּים לְהַטֹּת. וְהָעוֹבֵר עָלֶיהָ וְחִיֵּב בְּרֹב הַמֻּכְרָע בְּאֶחָד, עָבַר עַל מִצְוַת מֶלֶךְ, וְעָנְשׁוֹ גָּדוֹל מְאֹד, שֶׁגּוֹרֵם לְאִבּוּד נֶפֶשׁ שֶׁלֹּא כַּדִּין.
It is from the roots of this commandment [that it is] since we have been commanded to resemble the characteristics of God, blessed be He, in our actions. And among His traits is that He is of great kindness, meaning that He goes beyond the letter of the law with people. And [so] we too are commanded about this, that innocence be greater than liability in capital cases, as it is something that has no repayment. And the judgments of the commandment are in the fourth chapter of Sanhedrin, as we have written above in the positive commandment of inclining towards the many (Sefer HaChinukh 78). And one who transgresses it and makes [someone] liable with a majority decided by one, has violated the commandment of the King. And his punishment is very great, as he caused the loss of a soul not in accordance with the law.