Babylonian Talmud: Tractate Sanhedrin

Folio 41a

The school of Hezekiah taught: And if a man come presumptuously upon his neighbour to slay him with guile;² — this implies that they warned him, yet he remained with wilful intent.³  The school of R. Ishmael taught: And they that found him gathering sticks:⁴  that implies that they warned him, yet he continued gathering. The school of Rabbi taught: Because [lit., 'for the word that'] he hath humbled [his neighbour's wife'],⁵  teaching, [it is] by reason of 'the word' [that he is stoned].⁶  And [these verses] are all necessary: for had the Divine Law stated [this provision] only in reference to a man's sister, one might have said that it applied only to those liable to flogging, but not to those liable to death,⁷  therefore the Divine Law wrote, If a man come presumptuously etc.⁸ Again, had this verse only been written, I might have thought that it [sc. a warning) is necessary only for decapitation, which is a milder form of death; but for stoning, which is severer, one might hold that it is not [required]: thus all are necessary. But why need two [intimations]⁹  in respect of stoning? — According to R. Simeon,¹⁰  to extend [the law of warning] to cases of burning;¹¹  whilst the Rabbis¹²  [answer]: (Scripture [sometimes] takes the trouble of stating a law¹³  which can be deduced a minori. But Scripture should have intimated it for stoning [only], and then these other cases¹⁴  could have been inferred from it! — Here too [the same answer must be given]: Scripture [sometimes] takes the trouble of stating a law which can be deduced a miniori.

'Did he admit his liability to death?' Whence do we infer this? Raba — others state, Hezekiah — said: Scripture states, Shall he that is to die¹⁵  be put to death;¹⁶  [He is not put to death] unless he [previously] admitted his liability to death.¹⁷

R. Hanan said: Witnesses against a betrothed damsel¹⁸  who were proved Zomemim, are not executed,¹⁹  since they may plead, We came forward [to testify] only to render her ineligible for her [intended] husband.²⁰  But they must surely have warned her!²¹  — This treats of a case where they did not warn her. But if so, how could she be put to death at all?²²  This refers to an educated woman, and is based on the view of R. Jose son of R. Judah. For it has been taught: R. Jose son of R. Judah said: A scholar needs no warning, for warning was instituted only in order to distinguish between wilfulness and unwilfulness.²³  But since they are not executed, how could she be? For this becomes evidence to which the law of Zomem cannot be applied,²⁴  and such is not admissible!²⁵  — He [R. Hanan] actually meant it thus: Since they are not executed, for they can plead, 'We came only to make her ineligible for her [intended] husband,' she too cannot be executed, because it is evidence to which the law of Zomem cannot be applied. Then in the case of an educated woman, who, as we know, is to be executed on the view of R. Jose son of R. Judah, how, is that possible?²⁶  — If she misconducted herself twice.²⁷  But they [the witnesses] can still plead, We came only to render her forbidden to her second paramour!²⁸  — [The case in question is one] where the misconduct was repeated with the first adulterer,²⁹  or one of misconduct with one of her relations.³⁰

But why state this only of a 'betrothed damsel': surely the same applies to a married woman too! — True: but [the purpose here is to teach that] even in such a case, though she has not yet lived with her husband, they can plead, We came forward only to make her ineligible for her [intended] husband.

R. Hisda said: If one testified that he [the accused] slew him with a sword, and another, that he slew him with a dagger, it [the evidence] is inadmissible.³¹  If one says, His clothes were black, and the other, His clothes were white; the evidence is admissible.³²

An objection is raised: 'Certain'³³  implies that the evidence must be certain; if one witness says, He slew him with a sword, and the other says, With a dagger; or if one says, His clothes were black, and the other, They were white, the evidence is not 'certain'?³⁴  — R. Hisda interpreted this as referring to the [colour of] the cloth with which he strangled him, which comes under the same category as sword or dagger.

Come and hear! If the one says that his sandals were black, and the other, that they were white, the evidence is not certain'!³⁵  — There too the meaning is, that he kicked him with his sandal and killed him.³⁶

Come and hear! IT ONCE HAPPENED THAT BEN ZAKKAI CROSS-EXAMINED [THE WITNESSES] AS TO THE STALKS OF THE FIGS. — Rami b. Hama replied: The meaning is, that a man cut off a fig on the Sabbath, for which he was to be put to death.³⁷  But has it not been taught: They said to him, 'He killed him beneath a fig-tree'? — But, said Rami b. Hama: It was a case where he [the accused] pierced his victim with the sharp end of a fig branch.

Come and hear! He questioned [the witnesses]: Were the stalks of this fig tree thin or thick? And were the figs [themselves] black or white?³⁸  But, answered R. Joseph: Would one raise an objection from Ben Zakkai! Ben Zakkai had a different view, since he assimilated bedikoth to hakiroth.³⁹ 

Now, who was this Ben Zakkai? Shall we say, R. Johanan b. Zakkai? Was he then [a member] of the Sanhedrin?⁴⁰  Has it not been taught:⁴¹  The whole lifetime of R. Johanan b. Zakkai was a hundred and twenty years. Forty years he engaged in business; forty years he studied, and forty years he taught. And it has also been taught: Forty years before the destruction of the Temple, the Sanhedrin were exiled⁴²  and took up residence in Hanuth.⁴³  Whereon R. Isaac b. Abudimi said: This is to teach that they did not try cases of Kenas.⁴⁴  'Cases of Kenas!' Can you really think so!⁴⁵  Say rather, They did not try capitol charges.⁴⁶  Again we learnt:⁴⁷  When the Temple was destroyed, R. Johanan enacted [so and so].⁴⁸  But the reference is to some other Ben Zakkai. Reason too supports this: for were R. Johanan b. Zakkai meant, would Rabbi⁴⁹  have called him merely Ben Zakkai!⁵⁰  Yet has it not been taught: It once happened that R. Johanan b. Zakkai examined [witnesses] as to the stalks on the figs?⁵¹  — He must therefore have been a disciple sitting before his Master,⁵²  when he made this statement the reasoning of which was so acceptable to them [the Rabbis]

1. I.e., a warning must be given that he is liable to flagellation.
2. Ex. XXI, 14.
3. From the use of the imperfect [H], which connotes a continuous present. Murder is punishable by decapitation.
4. Num. XV, 33; here too, the deduction follows from the use of the present part. ([H]), i.e., 'he went on gathering sticks after he was found (and warned). This shows the need for warning in the case of stoning
5. Deut. XXII, 24.
6. [H] 'By reason of the word' — sc. of warning.
7. For one might think that owing to the severity of the crime people would themselves realise the consequences and so not need warning.
8. So indicating the need of warning in a case punishable by death.
9. One in connection with the 'gatherer of sticks', and the other regarding the 'betrothed damsel'.
10. Who holds that burning is a severer death; consequently, the warning here cannot be deduced from the reference to stoning, since it might be thought that in the case of a severer punishment, warning is not required.
11. R. Simeon bases this on the hermeneutical [H] i.e., if it has no hearing on cases of stoning, it must refer to cases of burning.
12. Who hold that stoning is a severer death, so that warning for burning follows therefrom a fortiori.
13. Here, not explicitly, but by the same principle of [H].
14. Sc. lashes and decapitation.
15. Lit., 'the dead.'
16. Deut. XVII, 6.
17. This is deduced from the expression, [H], the dead, instead of 'murderer'. In accepting the warning then, he is regarded as dead de jure, even before appearing in court, since the warning involves the consequences of the evil deed.
18. Who have testified to her infidelity. Had the charge been proved, she would have been executed.
19. Despite the fact that collusive witnesses are punished according to the law of retaliation.
20. For if the charge were proved, even if for some reason she were not executed, she would be forbidden to her husband!
21. That the consequence of her act was death. How then could this argument for the defence be raised
22. And in that case the witnesses too are not liable, since it is written, And ye shall do unto him as he thought (plotted) to do unto his brother (Deut. XIX, 19), i.e., they are punished only as the accused would have been punished.
23. If the murderer was not warned he could plead ignorance of the death penalty. A scholar could not raise such a point in his defence. Hence this woman would have been liable to death, and in consequence, the false witnesses too, but for the plea stated above.
24. I.e., even if their evidence is proved to be false, the law of retaliation cannot operate, because of their possible defence that they intended only to make her ineligible for her intended husband, and not to bring the death penalty upon her.
25. Lit., 'is not called testimony.' For unless there is this deterrent to false testimony, it is suspect ab initio.
26. Since the witnesses themselves, if proved Zomemim, are not executed.
27. And so the witnesses in the second charge can no longer plead that their intention was only to prohibit her to her husband, since she is already forbidden.
28. An unfaithful woman is forbidden not only to her husband, but also to the adulterer, if he afterwards wishes to marry her. V. Sotah 26b.
29. To whom she is already prohibited in consequence of their earlier relations.
30. Whom she is absolutely forbidden to marry at all.
31. Lit., 'not certain', quoted from: Behold if it be truth and the thing certain (Deut. XIII, 15. XVII, 4.), v. supra 30b.
32. Contradictory statements made during cross examination are of sufficient importance to be invalidated only when they refer to the act itself.
33. Deut. XIII, 15: XVII, 4. V p. 265, n. 9.
34. Hence inadmissible. I.e., the evidence must tally, even in respect of matters which have no direct bearing on the act.
35. Although there is here no actual contradiction in matters directly involving the act.
36. The sandals being the actual weapons, the question of colour is on a par with the question of sword or dagger.
37. Hence the species of fig is of direct importance for the veracity of the witnesses.
38. I.e., ripe or unripe. Now surely, he could not have killed anyone with the figs. This proves that the meaning is that the witnesses deposed that the accused had killed his victim under or near a fig-tree, and thus this again refutes R. Hisda.
39. And maintained that just as contradictions on the latter invalidated the evidence, so on the former. The general view, however, disagrees with this, and R. Hisda's dictum was likewise in accordance with the general view.
40. At the time when they still had power to try capital cases.
41. Cf. R. H. 31b.
42. From the Hall of Hewn Stones. V. infra p. 205, n. 5.
43. [H] A place on the Temple Mount outside the hewn chamber where they had temporary residence. (Derenbourg, Essai, p. 467, and Krauss, REJ, LXIII, 66f., identify it with the 'Chamber of the sons of Hanan' (a powerful priestly family, cf. Jer. XXXV, 4) mentioned in J. Pe'ah I, 5.]
44. V. Glos.
45. That these, like capital charges, could be tried only in the chief seat of the Sanhedrin — the Hall of Hewn Stones! These cases could, in fact, be tried anywhere in Palestine.
46. V. A.Z. 8b on Deut. XVII, 10: And thou shalt do according to the tenor of the sentence which they shall declare unto thee, from that place; this implies that it is the place that conditions the authority of the Sanhedrin in respect of the death sentence. [J. Sanh. I, 1 has, 'the right to try capital cases was taken away from them, i.e., by the Romans. For a full discussion of the subject v. Juster. op. cit, II, 138ff.]
47. R. H. 29b.
48. Hence the last period of R. Johanan's career was after the destruction of the Temple, when the Sanhedrin no longer tried capital cases.
49. In the Mishnah.
50. Depriving him of the title given at ordination.
51. I.e., it must be the same person.
52. At a time when capital cases were yet tried.

Sanhedrin 41b

IT ONCE HAPPENED THAT ETC. … WHAT IS THE DIFFERENCE BETWEEN HAKIROTH AND BEDIKOTH.? etc. What does 'EVEN⁴  IF BOTH SAY etc. mean? It is surely obvious that if when one of the two witnesses says, 'I do not know,' their evidence is valid, if two say so, their testimony is likewise valid?⁵  — R. Shesheth said: This refers to the first clause [of the Mishnah]⁶  and its meaning is as follows: In hakiroth, even if two say, 'We know,' and one is in doubt, their evidence is invalid. With whom does this agree? — With R. Akiba, who treated three [witnesses] as equal to two.⁷  Raba demurred: Surely the Mishnah states: THEIR EVIDENCE IS VALID!⁸  — But, said Raba, it means this: Even in hakiroth, if two say, 'We know,' and the third says, 'I do not know,' their evidence is valid. With whom does this agree? — Not with R. Akiba.

R. Kahana and R. Safra were studying [the Tractate] Sanhedrin in the school of Rabbah. When Rami b. Hama met them, he asked them: What have ye to say on the Tractate Sanhedrin as taught in the school of Rabbah?⁹  They retorted: And what in particular are we to say of the Tractate itself?¹⁰  What is your special difficulty? — He answered: [The difficulty arises] from what is stated: WHAT IS THE DIFFERENCE BETWEEN HAKIROTH AND BEDIKOTH? IN HAKIROTH, IF ONE [OF THE WITNESSES] ANSWERS, 'I DO NOT KNOW,' THEIR EVIDENCE IS VOID. WITH RESPECT TO BEDIKOTH, HOWEVER, IF ONE ANSWERS, I DO NOT KNOW,' OR EVEN IF BOTH SAY, 'WE DO NOT KNOW THEIR EVIDENCE IS VALID. Now consider: both are Biblically [required]:¹¹  why then should hakiroth differ from bedikoth? — They said to him: How compare them?¹²  As for hakiroth, if one of the witnesses say, 'I do not know', the evidence is invalid because it cannot be refuted;¹³  but with respect to bedikoth, if one of them answers, 'I do not know', the evidence remains valid, since it is still subject to refutation. Thereupon he said to them: If that is what you have to say, you have much to say thereon. But they replied: only because of your great forbearance have we said so much; had you criticized us, we should not have said anything.¹⁴

IF ONE TESTIFIES … [FOR ONE MAY HAVE BEEN AWARE OF THE INTERCALATION OF THE MONTH etc.] Till what date?¹⁵  — R. Aha b.Hanina said in the name of R. Assi in the name of R. Johanan: Until the greater part of the month [has passed].¹⁶  Raba said: We too learnt likewise' IF HOWEVER, ONE SAID, 'ON THE THIRD, AND THE OTHER, 'ON THE FIFTH, THEIR EVIDENCE IS INVALID. But why so? Why not assume that the one may have known of two intercalations,¹⁷  whilst the other was ignorant of both! Hence it must surely be so because, when the greater part of the month has passed, one knows thereof [sc. intercalation]! — [No.] In truth I might argue that even after the passing of the greater part of the month, one does not necessarily know [of the intercalation],¹⁸  yet he must have known of the Shofar-signal:¹⁹  we may then say that he may have erred regarding one signal,²⁰  but not regarding two.²¹

R. Hanina also said in the name of R. Assi in R. Johanan's name: Until what day of the month may the benediction over the new moon be recited?²²  — Until its concavity is filled up. And how long is that? — R. Jacob b. Idi said In Rab Judah's name: Seven days. The Nehardeans said: Sixteen [days].

1. I.e., after ordination.
2. In the Mishnah.
3. Which is chronologically correct.
4. The word 'even' gives the impression that when both witnesses are dubious, the evidence is less likely to be valid than when only one is in doubt.
5. For if one is ignorant on a certain point, the other's knowledge thereof is valueless. Hence whatever evidence is valid when one is ignorant, is also valid when both are ignorant.
6. Which deals with HAKIROTH.
7. Just as when there are only two witnesses, if one of them is disqualified, the whole evidence falls to the ground, so when there are three. V. Tosaf. and cf. Mak. 5b.
8. How then interpret it of a case where the evidence is invalid?
9. Seeing that you have studied under such a great man, you must surely have discovered many new points.
10. I.e., even if we had not studied with Rabbah, was there really any difficulty to be found there? (Rashi). [Yad Ramah adds: 'as generally taught' (lit., 'as all the world teaches')?
11. V. supra 40b, 41a.
12. Lit., 'How so, now!'
13. Be proving that the witnesses were elsewhere at the said time. Hence, if one is in doubt regarding the place or time, such refutation is impossible. — It should be observed that only refutation of time and place is meant in the whole discussion, since that is the only form of refutation which renders the witnesses liable to the law of retaliation.
14. I.e., had you criticized our arguments we should not have been able to resist yours!
15. I.e., until what day of the month may ignorance of the defectiveness or fullness of the last month be assumed in explanation of the discrepancy between two witnesses?
16. After that, contradiction as to date invalidates the evidence. The greater part of the month means one day beyond half way.
17. Either consecutively or alternately.
18. And so the question from the Mishnah is not corroborative.
19. Blown at the proclamation of the new moon, be the month full or defective.
20. I.e., though knowing that the Shofar had been sounded, he may have erred once as to the day on which it was sounded.
21. Hence the invalidity of the evidence where there is a difference of two days.
22. A benediction is recited at each re-appearance of the new moon just as on the re-appearance of everything that is beneficial to mankind. V. J. Ber. IX, 2. 'He who sees the moon in her stage of renovation, utters: Blessed etc.'