Commentary on Law, Oral Tradition
The Sanhedren, Book-8, Legal Structure, Part-1,
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Commentary on Law, Oral Tradition
BOOK VIII, The Sanhedren, and the Legal Code; Jewish Thought evolution from Moses and Mount Sinai through Years of Jesus, to AD 200;
SYNOPSIS OF SUBJECTSOF
TRACT SANHEDRIN (SUPREME COUNCIL).
MISHNA I. To which cases judges are needed to decide, and to which commoners; which three, five, twenty-three, and seventy-one. The Great Sanhedrin consisted of seventy-one, and the Small of twenty-three. How many a city should contain, that it should be fit for a supreme council. If one were known to the majority of the people as an expert, he alone might decide civil cases. A permission from the Exilarch holds good for the whole country (of Babylon and also for Palestine); from the Prince in Palestine, for the whole of Palestine and Syria only: he may teach the law, decide civil cases, and may also decide upon the blemishes of first-born animals. He (a priest) saw a divorced woman and married her, and with this he annulled his priesthood. He erred in his opinion--e.g., there were two, Tanaim and two Amoraim who differed in a case, and he decided the case according to one. There are three Tanaim who differ concerning arbitration. When the decision is already given in accordance with the strict law, an arbitration cannot take place. May or may not a judge say, "I do not want to decide this case"? and under what circumstances? Is mediation a meritorious act, or is it only permitted? There were many who used to say maxims of morality, and Samuel found that they were only repetitions of verses in the Scriptures. "Say unto wisdom, Thou art my sister," means, if the thing is certain to you as that it is prohibited for you to marry your sister, then you may say it; but not otherwise. If one appoints a judge who is not fit to be such, he is considered as if he were to plant a grove in Israel. The court shall not listen to the claims of one party in the absence of the other (in civil cases). "You shall judge righteously" means, you shall deliberate the case carefully, and make it just in your mind, and only thereafter may you give your decision: "For the judgment belongeth to God." The Holy One, blessed be He, said: "It is the least for the wicked to take away money from one and give it to another illegally," etc. Is warning needed to a scholar? Where is the hint that collusive witnesses are to be punished with stripes? Punishment of stripes is not applied to those who do no manual labor. The numbers three, five, and seven--to what have they a similarity?
[paragraph continues] A year must not be intercalated with one month, except by them who are invited for it by the Nashi. Since the death of the last prophets--Haggai, Zechariah, and Malachi--the Holy Spirit has left Israel, etc. A leap year should not be made because of the kids, lambs, etc. For the following three things a leap year is made: Because of the late arrival of Spring, etc. A leap year must not be made in the years of famine, The year must not be intercalary before Rosh Hashana. A leap year must not be made in one year for the next. No appointment of a leap year must be because of defilement. If not for Ben Baba, the law of fines would be forgotten from Israel. The legend how Jehudah b. Baba supplied the degree of Rabbi to five (six) elders, and by this act he caused the oral law not to be forgotten from Israel. The custom of giving degrees must not be used out of Palestine. What is to be considered second tithe, of which the value is not known? Rotten fruit, etc. "Every great matter," means the matter of a great man. By the whole tribe, is meant the head of it. The legend how a battle was decided by King David. Whence do we know that it is a duty to appoint judges to each tribe? etc. The legend of Eldad and Medad, and what their prophecy was. How Moses selected the seventy elders from each tribe, and also the payment of the first-born who were not redeemed by Levites. Sentence of guilt must be by a majority of two. If all persons of a Sanhedrin are accusing, the defendant becomes free. How so? In a city in which the following ten things do not exist it is not advisable for a scholar to reside. and they are, etc. Of rulers of thousands were six hundred; of hundreds, six thousand; of fifties, twelve thousand; of tens, sixty thousand--hence the total number of the officers in Israel was seventy-eight thousand and six hundred. 1-42
MISHNAS I. AND II. The high-priest may judge and be a witness; be judged and witnessed against. A king must not judge, and is not judged; must not be a witness, nor witnessed against. There are cases from which one may withdraw himself, and there are others from which he may not. How so? A king must not be a member of the Sanhedrin; nor he and a high-priest engage in discussion about a leap year. The legends of three pasturers who had a discussion about the month Adar, which the rabbis took as a support to establish a leap year. When he (high-priest) goes in the row to condole with others, his vice and the ex-high-priest are placed at his right, etc. Formerly the custom was for the mourners to stand, and the people to pass by, etc. A row is not less than ten persons, not counting the mourners. All agree that if a king has relinquished his honor, it is not relinquished. How could David marry two sisters while they were both living? The strength of Joseph was moderation on the part of Boas, and the strength of the latter was moderation on the part of Palti, etc., etc. If a death occurs in the house of the king, he must not leave the gate of the palace, 43-52
MISHNAS III. TO VI. Three positive commandments was Israel commanded when they entered Palestine, viz., they should appoint a king, etc. The treasures of kings which are plundered in time of war belong to the king, only. He (the king) must not marry more than eighteen wives. Even one
wife, should she be liable to turn his heart away, he must not marry her. The number eighteen mentioned in the Mishna--whence is it deduced? Four hundred children were born to David by the handsome women whom he took captive (i.e., those mentioned in Deut. xxi. 11). Only a son may stay alone with his mother, but it is not allowed for any one besides to stay alone with a married woman. He (the king) must not acquire many horses, neither more gold and silver than to pay the military. He shall not acquire many horses, and lest one say, "Even those which are needed for his chariots," etc. He shall not acquire much gold and silver--lest one say, "Not even sufficient for paying the military," etc. Why does not the Scripture explain the reason of its law? Because in two verses it was so done, and the greatest men of a generation stumbled because of them, etc. Ezra was wrothy that the Torah should be given through him, if Moses had not preceded him. In the very beginning the Torah was given to Israel in Assyrian characters, etc. (see footnote, 1). One must not ride on his--the king's--horse, etc. Come and see how hard is divorce in the eyes of the sages! He who divorces his first wife, even the altar sheds tears on account of him. The king must cut his hair every day, a high-priest every eve of Sabbath, and a commoner priest every thirty days, 52-63
MISHNAS I. TO III. Civil cases by three: one party may select one, and so the other, and both one more. Pure-minded people of Jerusalem used not to sign a document unless, they were aware who was the other who was to sign it, and also would not sit down to judge unless they were aware who was to be their colleague, etc. One has no right to reject a judge who was appointed by the majority. There is a rule that the testimony of one who is interested in a case is not to be taken into consideration. Proof is needed to each claim, even if it is not so important that it could injure the case. He who saw Resh Lakish in the college saw one uprooting hills and crushing them, and he who saw R. Mair saw one uprooting mountains and crushing them. Gamblers (habitual dice-players) and usurers, and those who play with flying doves, are disqualified to be witnesses. What crime is there in dice-playing? Because they do not occupy themselves with the welfare of the world. One who borrows to pay usurers is also disqualified. Gamblers are counted those who play with dice; and not only with dice, but even with the shells of nuts or pomegranates. Among those who play with doves--other animals are also meant. There was added to the disqualified witnesses robbers and forcers (i.e., those who take things by force, although they pay the value for them). There was secondly added to that category, collectors of duty and contractors of the government. The father of R. Zera was a collector for thirteen years, etc. One's thought for his maintenance injures him in his study of the law, etc. They who accept charity from idolaters are disqualified to be witnesses, provided they do so publicly, etc. One who is wicked in money matters only is disqualified to witness, but not one wicked in heavenly matters. Bar Hama had slain a man, and the Exilarch told Aba b. Jacob to investigate the case; and if he really slew the man they should make the murderers blind, etc., 64-79
MISHNAS IV. TO VI. The following are counted relatives who may not be witnesses: Brothers, brothers of father or mother, brothers-in-law, etc. "My father's brother shall not witness in my cases; he, his son, and his son-in law." "The brother of my mother-in-law cannot be a witness for me." The husband of one's sister, also the husband of the sister of one's father and the husband of the sister of one's mother, their sons and their sons-in-law, are also excluded from being witnesses. A stepfather . . . his son-in-law, etc. There was a deed of gift which was signed by two brothers-in -law--i.e., two husbands of two sisters, etc. How were the witnesses examined? They were brought into separate chambers, etc. How were the witnesses frightened? There was one who had hidden witnesses under the curtains of his bed, and he said to his debtor: "Have I a mana with you?" etc. There was one who was named by the people "the man who has against him a whole kab of promissory notes." There was another who was named "the mouse who lies on dinars," etc. There was a document of confession in which it was not written: "He (the debtor) has said to us, 'Write a document, sign, and give it him' (the creditor)," etc. "I have seen your deceased father hide money in a certain place, saying, 'This belongs to so-and so,'" etc. How is the judgment to be written? So was the custom of the pure-minded in Jerusalem. They let parties enter, listened to their claims, and thereafter let the witnesses enter, listened to their testimony, then told all of them to go out, etc. This is a rule for every case in which is mentioned "a witness," that it means two. Simeon b. Alyaqim was anxious that the degree of Rabbi should be granted to Jose b. Hanina, etc., etc. A confession after a confession, or a confession after a loan, may be conjoined; but a loan after a loan, or a loan after a confession, do not join (p. 91). Witnesses in civil cases who contradict one another in unimportant investigations are to be considered. So long as the defendant brings evidence to his advantage, the decision may be nullified by the court. However, if after he had said, "I have no witnesses," etc. What happened to R. Na'hman with a young man whom he made liable. If one who is summoning a party who says, "I want my case brought before the assembly of sages," etc., he maybe compelled to try his case in that city. In Babylon they are not allowed to try cases of fine, 79-96
MISHNAS I. TO III. Cases coming before the court, the witnesses thereof must be examined and investigated. What difference is there between civil and criminal? The following from (a) to (g). Biblically there is no difference between civil and criminal cases concerning investigations. But why is it enacted that civil cases do not need investigation? "Justice, only justice, shalt thou pursue," means that one shall follow to the city of a celebrated judge, etc. What has the court first to say to the advantage of the defense in criminal cases? If one has tried a case, and made liable him who is not, or vice versa, etc. Tudus the physician testified that not one cow or one swine was sent from Alexandria in Egypt of which the womb was not removed. If one was found guilty by the court, and thereafter one come, saving: "I know a defense for him, etc, So long as the fire in the
stove burns, cut off all that you want to roast, and roast it. (i.e., when you are studying a thing, consider it thoroughly to prevent questions.) All who take part in the discussion may explain their reasons, until one of the accusers shall yield to one of the defenders. In the neighborhood of R. Johanan there was one who was blind who used to judge cases, etc. From the time of Moses until the time of Rabbi, we do not find one man who was unique in the possession of wisdom, riches, and glory, etc. One may teach his disciple, and at the same time may judge in association with him in criminal cases. In ten things civil cases differ from criminal cases. All are competent to judge civil cases. But not all of them are competent to judge criminal cases. The Sanhedrin sat in a half-circle in order that they could see each other, etc. The Torah has testified that we are such a kind of people that even a fence of lilies is sufficient for us, and will never be broken. How were the witnesses awestruck in criminal cases? A human being stamps many coins with one stamp, and all of them are alike; but the Holy One, blessed be He, has stamped every man with the stamp of Adam the first, and, nevertheless, not one of them is like the other, Although the court of the Sanhedrin existed no longer, the punishment of the four kinds of death prescribed in the Scripture was not abolished by Heaven. Adam the first was created singly, and why? That disbelievers should not say there were many Creators in heaven, etc. In three things one is different from his neighbor--in voice, etc., 97-114
MISHNA I. The court used to examine the witnesses with seven inquiries, etc. Should one of the witnesses say, "I have something to say in behalf of the defendant," or one of the disciples, I have something to say to the disadvantage of the defendant," the court silences him. Why not say that eight queries are necessary in the examination? Viz., how many minutes are there in the hour? Do you recognize this man as the murderer of him who was slain? Was he a heathen or an Israelite? Have you warned him? Did he accept the warning? etc. Whence do we deduce that the warning is prescribed biblically? Witnesses who testified in case of a betrothed woman, if they be found collusive, are not to be put to death. What is the difference between examination? etc. Until what time may the benediction of the moon be pronounced? If Israel should have only the meritorious act of receiving the glory of their heavenly Father once a month, it would be sufficient. They do not drink wine. And why not? In civil cases the court may say: The case becomes old, etc., 115-125
MISHNAS I. TO IV. If the conclusion was to condemn, the guilty one was taken out immediately to be stoned. A herald goes before him, heralding: So and so, etc. One stands with a flag. I doubt who had to bear the cost of the flag and horse mentioned in the Mishna, etc. If one of the disciples said, "I have something to say in behalf of the defendant," and thereafter he became dumb? He who is modest, the verse considers him as if he should
sacrifice all the sacrifices mentioned in the Scripture. When he (the guilty) was far from the place of execution--a distance of ten ells--he was told to confess. Why are the words "unto us and to our children," and the Ayin of the "ad" pointed? The Lord said to Joshua: Thou thyself hast caused all the evils, because thou didst excommunicate the goods of Jericho. One should always proceed with prayer before trouble comes. It happened with one who was going to be executed, that he said: If I am guilty of this crime, my death shall not atone for all my sins. See footnote, 1, concerning the legend of Simeon b. S. of the eighty witches hung by him. A male was stoned while naked, but not a female. The stoning place was two heights of a man, etc. If before the execution the hands of the witnesses were cut off, he becomes free from death. "The avenger of the blood himself shall slay." Infer from this that it is a meritorious act for the avenger to do so himself, 126-139
MISHNAS V. AND VI. All who are stoned are also hanged. A male, but not a female. Two must not be judged on the same day, provided there are two kinds of death. How was one hanged? The beam was put in the earth, etc. King Sabur questioned R. Hama: Whence do you deduce from the Torah that one must be buried? etc. Is the burying because the corpse shall become disgraced if not buried, or is it because of atonement? Is the lamentation an honor for the living or for the deceased? And what is the difference? etc. A wicked person must not be buried with an upright one. All the curses with which David cursed Joab fell on the descendants of David. They were [II Sam. iii. 29], etc. If not for Joab, David would not have been able to occupy himself with the law, etc., 139-148
MISHNAS I. TO V. Four kinds of capital punishment are prescribed to the court by the Scriptures. According to R. Simeon, burning is more rigorous than stoning. With her father, burning applies; with her father-in-law, stoning applies. How is this to be understood? Do you come to teach a Halakha which will be used only then when the Messiah will appear? The prescribed punishment of burning was this: The sinner was placed in waste knee-deep. Then placing a twisted scarf of coarse material within a soft one, etc. But why should burning not be inferred from the offerings of the bullocks, which were burned bodily? Nadob said to Abihu: When will the two old men die, and you and I be leaders of Israel? The prescribed punishment of slaying was thus: He was decapitated, etc. The prescribed punishment of choking was thus: The sinner was placed in waste knee-deep, etc. To the following sinners stoning applies: viz., one who had connection with his mother, etc. "A man" means to exclude a minor. [Lev. xxii.]: "That lieth with his father's wife" means, that there is no difference whether she is his mother or not, 150-164
MISHNAS VI. TO VII. One who had connection with a human male, or with an animal, and also a human female who uncovers herself before a male animal, are punished with stoning. "With an animal" makes no difference whether it was a large or a small one. A blasphemer is not guilty, unless he mentioned the proper name of God (Jehovah). "Any man whatsoever,"
etc., meaning to include the heathen, who are warned of blasphemy. Ten commandments were commanded to Israel in Marah; seven of them are those which were accepted by the descendants of Noah. For transgression of these commandments a descendant of Noah is put to death, viz., adultery, bloodshed, and blasphemy. A descendant of Noah may be put to death by the decision of one judge, by the testimony of one witness, etc. Every relationship for which the punishment of the courts of Israel is death, a descendant of Noah is warned of it; but all other relationships, the punishment of which is not death, are permissible to them. He who raises his hand to his neighbor, although he has not as yet struck him, is called wicked. "Flesh in which its life is, which is its blood, shall ye not eat," [Gen. ix. 4] means any member of the animal, while it is still alive. We do not find any case where what is forbidden to the descendants of Noah should be allowed to the Israelites. An unclean thing never came from heaven. There is no difference if one hears it from the blasphemer himself or from the witness who heard it from the blasphemer--he must rend his garments 164-187
MISHNAS VIII. TO XII. One is considered an idolater who worships it with its proper worship; and even if he only sacrifices, smokes incense, or pours wine, etc. Why not say that from bowing "all kinds of worshipping" is to be inferred? In our Mishna it is stated: "He who worships idols." There is another Mishna, farther on, which states: He who says: "I will worship," is always considered an idolater, etc. If one worship an idol because he loves it, or because he fears it, etc. Concerning Sabbath it is more rigorous than all the other commandments in one respect, and all other commandments are more rigorous in another respect, etc. There is a tradition: He who conjoins the name of Heaven with something else is to be destroyed. It happened to a female heathen who was very sick an vowed that if she recovered she would worship all the idols which were to be found, etc. If one gives one of his children to Molech, he is not guilty unless he has transferred him to the servants, etc. One is not guilty unless he let him pass in the usual manner. What was that? A row of bricks were placed for passing, etc. Baal ob (mentioned in the Scripture) is the python that makes the dead speak from his armpit, and Yidoñi means one that makes the dead speak from his mouth. Is not he who queries an "ob" the same who inquires of the dead? Nay! etc. An observer of times is, according to R. Aqiba, he who reckons times and hours, saying: This day is good to go on the road, etc. He who curses his father or mother is not punished with a capital punishment, unless he curse them by the proper name of God, 187-194
MISHNAS XIII. TO XIV. He who sins with a betrothed damsel is not guilty to be stoned, unless she was a maiden betrothed and still in her father's house. A seducer means one who is himself a commoner--e.g., he says: There is an idol in such and such a place which so and so eats, etc. Concerning all who are liable to capital punishment biblically, it is not allowed to hide witnesses except in this case, etc. A conjurer is liable to be stoned only when he did an act, but not if he dazzled the eyes. The Halakhas of witchcraft are similar to the Halakhas of Sabbath. There are some to which stoning applies, etc. I have seen a rider of a camel who took his sword, cut off the head of the camel, and thereafter rung a bell, and the camel stood up. It was only a dazzling of the eyes. The legend of R. Eliezer with
his disciple, "Thou shalt not learn to do," means: "Thou must not learn to do, but thou mayest learn it to understand it for the purposes of deciding cases, 194-200
MISHNAS I. TO VIII. A stubborn and rebellious son--at what age may he be considered as such? From the time he brings forth two hairs, etc.; but the sages used to speak with delicacy. A minor of nine years and one day is fit to have connection with a woman, and in a case of adultery it is considered. Whence do we know that the first generation produced children at the age of eight? A daughter should be more open to the charges of stubbornness and rebelliousness, etc. But so is the decree of the Scripture--"a son, and not a daughter." He cannot be condemned as a stubborn and rebellious son, unless he eats meat and drinks wine. You shall not look for wine which makes red the faces of the wicked in this world, and makes them pale in the world to come. Thirteen ways are enumerated in the Scripture concerning wine, as in Genesis ix., from 20 to 25. If he has stolen from his father and consumed on his premises, etc., he is not charged as a stubborn and rebellious son unless he stole from his mother and father. If the father is willing to transfer the case of the son in question to the court, and the mother is not willing, or vice versa, etc. Such a thing neither occurred nor ever will be, and the same is with the case of a misled town, and also with a house of leprosy, and was written only for study. If one hand of his father or mother is missing, or they limp, or are dumb, etc. If he runs away before the decision of condemnation is rendered, etc. The Scripture prefers that be should die innocent, and not be put to death because of his sins. For the death of the wicked is both a benefit to them and a benefit to the world, etc. In the case of "breaking in" (Ex. xii., 1], for which there is no liability if one is killed by a detector, one is also punished because of his future crimes, etc. A burglar who broke in and succeeded in taking some utensils and escaped is free from paying. Because he acquired title to them by his blood. It happened that rams were stolen from Rabha by burglary and thereafter they were returned to him; he would not accept them because the above decision came from the mouth of Rabh, etc., 201-216
MISHNA IX. The following may be killed for self-protection: He who pursues one to kill him, and he who pursueth a betrothed damsel, etc. According to the rabbis the Scripture cares for the violation of her honor, and as she also cares for it, though without life-sacrifice, she must be saved even by killing her pursuers, etc. One who intends to worship idols may be killed (if there is an impossibility of preventing his crime otherwise.) "In the city of Luda it was voted and resolved that if one were compelled, under threat of being killed, to commit any one of all the crimes which are mentioned in the Torah, he might commit it and not be killed, except idolatry, adultery, and bloodshed. Is a descendant of Noah commanded to sanctify, the Holy Name, or not? It happened to one that he saw a woman and became sick through his infatuation, etc,. 216-221
MISHNAS I. TO VI. Punishment of burning applies to one man who has intercourse with a woman and her daughter, and to a daughter of a priest,
etc. Punishment with the sword applies to a murderer and to the men of a misled town. If one pressed down a person while he is in water, or in fire, preventing him from coming out, he is guilty, etc. If one bound a person, and he died thereafter of hunger, he is not guilty of a capital crime. If, however, he put him in a sunny place, and he died because of the sun, he is guilty. Ball-players--if one threw a ball with the intention of killing some one, he is to be put to death, and if it was unintentional, he is to be exiled, etc. All agree that if one kills a person whose windpipe and larynx (gullet) are cut or whose skull is fractured, he is free (for it is considered as if he attacked a dead man). If one strikes a person with a stone or with his fists, and he was diagnosed (by the physicians of the court) to die, and thereafter he improved, etc. Capital punishment does not apply to one who intended to kill an animal and killed a man, an idolater and killed an Israelite, etc.; but it does apply to one who intended to strike a person on the loins with an article which was sufficient for this purpose, and he strikes him to death on his heart, etc. A murderer mixed up among others--all of them are free, etc. If it happen that the persons sentenced to deaths of different kinds, and are so mixed that it is not known who comes under this kind of death and who under another, all of them must be executed with the more lenient death. If one committed a crime which deserves two kinds of death, he must be tried for the more rigorous one. Ezek. xviii. must not be taken literally, but "the mountains he eateth not" means that he does not live upon the reward of the meritorious acts done by his parents; "his eyes he lifteth not up to the idols" means that he never walked overbearingly, etc., 222-238
MISHNAS VII. TO IX. He who receives stripes, and relaxes into the same crime, the court takes him to the kyphos. He who kills a person not in the presence of witnesses is taken to the kyphos and is fed on scant bread and water. If one steals a kisvah, or one curses his neighbor, invoking God as a "carver," zealous people (like Pinchas) have a right to strike him when caught in the act. What is this punishment if there were no zealous men? Answer to this, it happened that it was read before R. Kahan in a dream, etc. In a case where there is a violation of the Holy Name the honor of the master must not be considered. "If a priest performs the service while he is defiled," etc. "If a common Israelite served in the Temple," etc., 238-244
MISHNAS I. TO VI. Choking applies to him who strikes his father or mother, to him who steals a living soul, etc. A son is not guilty of a capital crime unless he wounds his father by striking him. Cursing is in one respect more rigorous than striking, as he is guilty even if he did it after his lather's death. If one steals a person, he is not guilty of a capital crime unless he brings him upon his own premises. There is no difference whether he stole a male or a female, a proselyte, or a bondsman, or a minor, etc. R. Jehudah says that there is no disgrace for slaves. "Thou shalt not steal," in the third commandment, means human beings. [Lev. xix., ii]: "Ye shalt not steal," meaning money. A judge rebelling against the Great Sanhedrin. There were in Jerusalem three courts, etc. In case a judge in the country had a dispute with his colleagues, they came to the first court. If this court were able to decide it traditionally they rendered their decision; and if not, all of them came to the Great Sanhedrin, which was in the Temple
treasury, etc. A disciple who is not a judge who decides for practice against the Great Sanhedrin, is not culpable. A rebelling judge is not guilty unless he gave his decision in a matter to which, if done intentionally, korath applies, etc. The punishment of him who transgresses the decision of the scribes is more rigorous than for that which is plainly written in the Scriptures. The judge in question was not put to death by the court of his own city, etc., but was brought to the Supreme Council, in Jerusalem, etc. A false prophet who is to be sentenced by the court is only he who prophesies what he (personally) has not heard and what he was not told at all, etc. He who prophesied in the name of an idol, saying, "So and so was said by such an idol," although it corresponds exactly with the Hebrew law, he is punished by choking. See all illustrations, pp. 258-260. In every case mentioned in the Torah, if a true prophet commands you to transgress, you may listen, except as to idolatry, 245-261
MISHNA I. All Israel has a share in the world to come. The following have no share in the world to come: He who says, etc. Three kings and four commoners have no share in the world to come etc. Is he who does not believe that the resurrection is hinted at in the Torah such a criminal that he loses his share in the world to come? Where is the resurrection hinted at in the Torah? etc. From the Pentateuch, Prophets, and Hagiographa. See 267, also footnote. Queen Cleopatra questioned R. Mair thus: When they shall be restored, will they be naked. or dressed? Cæsar questioned Rabbon Gamaliel: You say that the dead will be restored. Does not the corpse become dust? etc. The living die--should the dead come to life? That which has not existed at all comes to life--shall those who had life once not come to life again? The legend of Gebiah b. Pessisa who advocated Israel before Alexander of Macedonia, etc. (Pp. 268, 270.) Antoninus said to Rabbi: The body and soul of a human may free themselves on the Day of judgment by Heaven. How so? Why does the sun rise in the east and set in the west? At what time does the soul come into the body? At what time does the evil spirit reach man? Lest one say that the verse just cited means, I make one die and another, one shall I bring to life, therefore it reads, "I wound and I cure." As wounding and curing apply to one person only, etc. He who hesitates in declaring a Halakha to a disciple, even the embryos in the entrails of their mothers denounce him. Great is wisdom, as it was placed between two divine names. Exiles atone for everything. The upright who will be restored in the future will never return to dust. "What will they do at the time the Holy One, blessed be He, shall renew His world?" etc. Concerning the dead whom Ezekiel restored, the different opinions of Tannaim and Amoriam, if it was a reality or a parable only. (p. 278.) Six miracles occurred on the day Nebuchadnezzar threw Chananyah, Mishael, and Azaryah into the caldron. Even at the time of danger one shall not change the dress belonging to his dignity. Where was Daniel at the time that they were thrown into the caldron? The legend of Achab and Zedkiyahu with the daughter of Nebuchadnezzar. According to the advice of three, Daniel went away before the affair of Chananyah, etc, Concerning the six barleys which Boaz gave to Ruth. All that is written in the book of Ezra was said by Nehemiah b. Chackhalyah. Why then was
it not named after him? The angel who rules the souls after their departure from this world is named Dumah. Hiskiah, who has eight names, shall take revenge on Sanherib, who also has eight names. Hiskiah's (king of Judah) whole meal consisted of a litter of herbs. Pharaoh, who personally blasphemed, was also punished by Heaven. Sanherib, who blasphemed through a messenger, was also punished through a messenger. Ten trips had the wicked made on that day, etc., as it reads [II Kings, x. 28 to 32]. There was one day more appointed for the punishment of the iniquity of Nob. And the astrologers told Sanherib, etc. If the judgment is postponed over one night there is hope that it will be abolished entirely. The legend how Abishai saved King David from Yishbi's hand at Nob. Sanherib, when he came to attack, brought with him forty-five thousand princes with their concubines in golden carriages, etc. See pages 293-296, the many legends concerning Sanherib. Be careful with the children of the Gentiles, as it happens very often wisdom emanates from them. That the day on which Achaz died consisted of only two hours. And when Heskiah became sick and thereafter recovered, the Holy One returned the ten hours to that day, etc. Three hundred mules loaded with iron saws which cut iron were given to Nebusaradan by Nebuchadnezzar while going to attack Jerusalem. Nebusaradan was a true proselyte, from the descendants of Sissera were such who studied the law in Jerusalem, and from the descendants of Sanherib were such who taught the Torah among a majority of Israelites, etc. Have you heard when the fallen son will come? etc. In his Sabbatic period when the son of David will appear in the first year there will be fulfilled, etc. The generation in which the son of David will come, young men will make pale the faces of the old, etc. The world will continue for six thousand years, the first two thousand of which was a chaos, etc. There are no less than thirty-six upright in every generation who receive the appearance of the Shekinah. All the appointed times for the appearance of the Messiah have already ceased. And it depends only on repentance and good deeds. Jerusalem will not be redeemed but by charity. What the Messiah told to Jehoshua ben Levi: Ben David will not arrive until Rome shall have dominated, etc. Discussion concerning the name of the Messiah. The cock said to the bat, I look out for the light because the light is mine (I see it), but for what purpose do you wait for it? The days of the Messiah will be as from the day of creation until now. "He hath despised the word of God," means he who learned the Torah but does not teach it. He who learned the Torah and does not repeat it is similar to him who sows but does not harvest, etc. Has not Moses written something better than: And Lotan's sister was Thimna, etc.? Who is meant by the term epicurian? What good have the rabbis done for us? They have never permitted us to eat a crow, and they have not prohibited us to eat a dove, etc. The measure with which man measures will be measured out to him--i.e., as a man deals he will be dealt with. A good woman is a good gift; she may be given to one who fears God. A bad woman is leprosy to her husband, etc. One may ask the fortune tellers who tell fortunes by certain oils or eggs. But it is not advisable to do so, because they often lie. Support me, and I will bear the statement of Aqiba, my disciple, who says: "Pleased are chastisements," etc. Three men (biblical personages) came with indirectness, etc. What means, "and he lifted up his hands"? He took off his phylacteries in his presence. (See footnote, page 1.) The legends concerning Jeroboam,
pp. 322-325. King Menashe appears to R. Ashi in a dream. R. Abuhu used to lecture about the three kings and became sick, etc. Why was Achab rewarded by the prolongation of his kingdom for twenty-two years? Because he was liberal with his money and assisted many scholars from his estate; half his sins were atoned. Four sects will not receive the glory of the Shekhina, viz., scorners, liars, hypocrites, and slanderers. Achaz abolished the worship and sealed the Torah, etc. The angels wanted to put Michah aside, but the Lord, however, said leave him alone because his house is open for travellers. Great are entertainments, for its refusal estranged two tribes from Israel, etc. Why does not the Mishna count Achaz and Amon among those who have no share? etc. Explanation to verses of Lamentation, pp. 334 to 337. The Scripture is particular that if any one tells his troubles to his neighbor, he should add: "May it not happen to you." The interpreters of notes said that all of them have a share in the world to come, etc. "A perpetual backsliding." Said Rabh: A victorious answer has the assembly of Israel given to the prophets, etc. Concerning Bil'am, the elders of Moab, and Midian, 265-340
One shall always occupy himself with the Torah and divine commandments, even not for the sake of Heaven, as finally He will come to do so for His own sake, etc. The caution that Achiyah, the Shilonite, gave to Israel is better for them than the blessings that Bil'am has given to them. "And Israel dwelt in Shittim." Everywhere such an expression is to be found it brings infliction, etc. I saw the record of Bil'am, and it was written therein thirty-three years was Bil'am when he was killed by Pinchas, the murderer. One shall not bring himself into temptation, as David, king of Israel, placed himself in the power of a trial and stumbled. Six months was David afflicted with leprosy; the Shekhina left him, and the Sanhedrin separated themselves from him. Exclusion shall always be with the left hand, and inclusion with the right hand--i.e., if one is compelled to repudiate some one, he shall do it easy as with his left hand, etc. Concerning David's sin with Bath Sheba, 340-350
MISHNA II. The generation of the flood have no share in the world to come, and are also not judged, etc. Concerning the generation of dispersion, men of Sodom and Gomorrah, etc., pp. 350-355: "Noah was just, a perfect man in his generation;" in his generation, but not in others. According to Resh Lakish: In his generation which was wicked, so much the more in other generations. Eliezar, the servant of Abraham, questioned Shem the great, etc. Shem the great questioned Eliezar, etc. "The generation of dispersion." What had they done? What were the crimes of the Sodomites? Concerning the congregation of Korah. One must do all he can not to strengthen a quarrel, etc. "And all . . . on their feet," means the money which makes one stand on his feet. "The generation of the desert has no share," etc, Eliezar, however, said, they have, etc., 350-362
MISHNAS III. TO IV. The ten tribes who were exiled will not be returned, etc., (pp. 362-363). From what age has a minor a share in the world to come? Your saying is not satisfactory to their creator. Say the reverse, even he who has studied but one law does not belong to the Gehenna. It happened once that I was in Alexandria of Egypt, and I found a certain old Gentile who said to me: Come, and I will show you what my great-grandfathers have done to yours, etc. Concerning Shebna and his society, ref. Isaiah, viii-12. Adam was created on the eve of Sabbath. And why?
The Minnim shall not say, etc. At the time the Lord was about to create a man, He created a cœtus of angels, etc. Every place where the Minnim gave their wrong interpretation the answer of annulling it is to be found in the same place--e.g., p. 370. The discussion with R. Gamaliel and other rabbis, pp. 372-376. "My creatures are sinking into the sea, and ye want to sing?" It reads [Ob. i. 1]: "The vision of the Lord . . . concerning Edom." Obadiah was an Edomite-proselyte. And this is what people say that the handle of the hatchet to cut the forest is taken from the wood of the same forest. [Gen. xxii. 1]: "After these things." After what? After the words of the Satan, etc. According to Levi, after the exchange of the words between Ishmael and Isaac, etc., 362-378
MISHNA IV. The men of a misled town have no share in the world to come (the Halakhas in detail, 378-383). Concerning the key of rain, which is one of the three keys which are not to be transferred to a messenger, Elijah, too, in the days of Achab, etc., 378-385
Commentary on Law, Oral Tradition
BOOK VIII, The Sanhedren, and the Legal Code; Jewish Thought evolution from Moses and Mount Sinai through Years of Jesus, to AD 200;
TRACT SANHEDRIN (SUPREME COUNCIL).CHAPTER I.
RULES AND REGULATIONS CONCERNING THE APPOINTMENT OF JUDGES IN CIVIL AND CRIMINAL CASES. WHICH ARE CONSIDERED CIVIL AND WHICH CRIMINAL. HOW MANY ARE NEEDED TO THE INTERCALATION OF A YEAR AND OF MONTHS; TO APPRAISE CONSECRATED REAL ESTATE AS WELL AS MOVABLE PROPERTIES; AND IF AMONG THE APPRAISERS MUST BE PRIESTS, AND IF SO HOW MANY. THE NUMBER OF PERSONS NEEDED TO ADD TO THE CITY FROM THE SUBURBS OF JERUSALEM. WHAT MAJORITY IS NEEDED TO ACCUSE AND WHAT TO ACQUIT. HOW MANY PEOPLE MUST BE IN A CITY THAT A COURT OF TWENTY-THREE JUDGES SHOULD BE ESTABLISHED.
MISHNA I: To decide upon the following cases, three persons are needed (the Gemara explains for which common and for which judges): Civil cases, robbery, wounds, whole damages and half, double amount and four and five fold payments; 1 and the same in the case of forcing, seducing, and libel (i.e., an evil name, Deut. xxii. 19). So is the decree of R. Meir.
The sages, however, maintain: In the last case (libel) twenty-three are needed, as this is not a civil case, but a crime which may bring capital punishment. In the case of stripes, three. In the name of R. Ishmael, however, it was said: Twenty-three are needed. To the intercalation of a month and to proclaim a leap year, three. So is the decree of R. Meir.
Rabban Simeon b. Gamaliel maintains: It begins with three persons and is discussed by five, and the decision is rendered by seven If, however, it was decided by three, their decision holds good.
The elders who had to lay their hands upon sacrifices [Lev.
iv. 15], and also in the case of the heifer [Deut. xxi. 3]--according to R. Simeon, three are needed, and according to R. Jehudah, five. At the performance of the ceremony of Halitzah and denial, three; to appraise the value of the plants of the fourth year (which must be redeemed), and the second tithe, of which the value in money is to be appraised, three; to appraise the value of consecrated articles, three; in cases of Arakhin (vows of value, men or articles), if movable property, three--according to R. Jehudah, one of them must be a priest; and if real estate, ten, and one of them a priest; and likewise to appraise the estimated value of men [Lev. xxvii.].
Crimes (which may bring capital punishment), twenty-three; in the case of Lev. xx. 15, twenty-three, as verse 16 reads: "Then shalt thou kill the woman and the beast"; and also in the preceding verse: "The beast also shall ye slay." And the same is the case with the stoning of an ox, of which it reads [Ex. xxi. 29]: "The ox shall be stoned, and the owner . . . be put to death"--which means, as for the death of its owner twenty-three are needed, so also for the stoning of the ox.
The wolf, the lion, the bear, the tiger, the bardls, 1 and the serpent are killed by the judgment of twenty-three. R. Eliezer, however, maintains: Every one who hastens to kill them is rewarded. But R. Aqiba says: Twenty-three are needed.
A whole tribe, or a false prophet, or a high-priest, if they have to be judged for a crime which may bring capital punishment, a court of seventy-one judges is needed. The same number of judges is needed to decide upon battles which are not commanded by the Scriptures, and also for enlarging the city of Jerusalem by annexing its suburbs or free land; and the same is the case if it is necessary to enlarge the courtyard of the Temple. Also, the same number of judges is needed for appointing supreme councils to each tribe. A misled town [Deut. xii. 14] must also be condemned by seventy-one. However, a town which stands on the boundary cannot be condemned; nor three of them at one time at any place, but only one, or two.
The Great (Sanhedrin) consisted of seventy-one, and the small of twenty-three. Whence do we deduce that the great council must be of seventy-one? From [Num. xi. 16]: "Gather unto me seventy men." And add Moses, who was the head of them--hence seventy-one? And whence do we deduce that a small one, must be twenty-three? From [ibid. xxxv. 24 and 25]: "The
congregation shall judge"; "And the congregation shall save." 1 We see that one congregation judges, and the other congregation saves-hence there are twenty; as a congregation consists of no less than ten persons, and this is deduced from [ibid. xiv. 27], "To this evil congregation," which was of the ten spies, except Joshua and Caleb. And whence do we deduce that three more are needed? From [Ex. xxiii. 2]: Thou shalt not follow a multitude to do evil"--from which we infer that you shall follow them to do good. But if so, why is it written at the end of the same verse, "Incline after the majority, to wrest judgment"? 2 This means, the inclination to free the man must not be similar to the inclination to condemn; as to condemn a majority of two is needed, while to free, the majority of one suffices. And a court must not consist of an even number, as, if their opinion is halved, no verdict can be established; therefore one more must be added. Hence it is of twenty-three.
How many shall a city contain that it shall be fit for a supreme council? One hundred and twenty families. R. Nehemiah, however, maintains: Two hundred and thirty--so that each of them should be the head of ten families, as we do not find in the Bible rulers of less than ten.
GEMARA: Are not robbery and wounds civil cases? Said R. Abuhu: The Mishna means to explain the term "civil cases" by robbery and wounds; but to the admitting of debts or loans, three judges are not needed. And that so it should be understood, both expressions were needed; as, if it stated civil cases only, it would include loans, etc.; and if the expression "robbery," etc., only, one might also say the same is the case with loans, etc.; and the expression "robbery," etc., is because the main point wherein three judges are prescribed by the Scriptures is in cases of robbery [Ex. xxii. 7]: "Shall the master of the house be brought unto the judges." And concerning wounds, it is the same whether a wound be in one's body or in his pocket (money), and therefore it begins with civil cases, and explains that cases like robbery are meant, and not common ones, etc. But whence are common loans excluded, that they do not need three? Did not R. Abuhu say: If two persons have judged in a matter of civil law, all agree that their
judgment is of no value? Therefore we must say that the Mishna means to exclude loans and admission of debts--to exclude from three established judges; but three common men are needed. And the reason is what R. Hanina said: Biblically, investigation is needed of crimes as well as of civil cases. As it is written [Lev. xxiv. 22]: "One manner of judicial law shall ye have." But why was it said that civil cases do not need investigation? In order not to lock the door to borrowers. And Rabha explained this statement as meaning that in two kinds of civil cases--loans, etc.--three common people are needed; but in cases of robbery, etc., three established judges. And R. Aha b. R. Ekha said: Biblically, even one is fit to decide civil cases, as it is written [ibid. xix. 15]: "In righteousness shalt thou judge thy neighbor." But the rabbis enacted three, in order to prevent men of the market, who are ignorant of law, to undertake to judge cases. But is it not the same with three common men? Are they not men of the market? If three undertake to judge a case, it is highly probable that at least one of them knows something of law. But if so, let two who should make an error in judging not be responsible? If this should be enacted, then all the market people would undertake to decide upon things.
But what is the difference between Rabha and R. Aha b. R. Ekha (according to both, three common men are needed in cases of common loans, etc.)? They differ in the following, which was said by Samuel: If two commoners have decided upon loan cases, their decision is to be respected; but they are considered an impertinent Beth Din. Rabha does not hold with Samuel, and maintains: Their decision must not be respected. And R Aha holds with him (Samuel).
"Whole damages and half," etc. Are not damages the same as wounds (both are to be paid)? Because it has to state half damages, it mentions also whole damages. Are not half damages also the same? The Mishna teaches concerning money which is to be collected according to the strict law and that which is only a fine. But this is correct only as to him who says that half damages are a fine; but as to him who says damages are strict law, what can be said? Because it has to state about the double amount, and four and five fold, which are more than the amount damaged, it mentions also half damages, which is less; and as half is mentioned, it mentions also the whole.
Whence do we deduce that three are needed? From what the rabbis taught. It treats [Ex. xxii. 7 and 8] three times of judges; hence three are needed. So said R. Yachiha. R. Jonathan, however, maintains: The first expression "judges," as the beginning, must not be taken into consideration, as it is needed for itself, and therefore only the two expressions "judges," mentioned after, are to be counted, and the third one is added only because we do not establish a court of an even number (as said above).
The rabbis taught: Civil cases are to be discussed by three. Rabbi, however, said: It is discussed by five, so that the final decision should be by three. But even when there are three, is not the final decision made by two? He means to say, because the conclusion must be of three judges. This explanation was ridiculed by R. Abuhu, saying: On such a theory, then the great Supreme Council ought to be one hundred and forty-one, to the end that the final conclusion should be made by seventy-one; and of a small council there ought to be forty-five, so that the conclusion should be made by twenty-three. And therefore we must say, as the Scripture reads, "Gather unto me seventy," it means the seventy ought to be at the time established. And the same is it in the case above cited, "the congregation shall judge, and the congregation shall save," meaning that at the time of judging there shall be ten. And in the same way are to be interpreted the just cited verses 7 and 8, that the plaintiff has to bring his case before three only. Therefore it may be said that the reason of Rabbi's decision is that because in the first verse is written, "The judges may condemn," as in the last, three is meant, so is it with the word Elohim, mentioned before, which means judges, also two is meant, which makes four; and one is added, so that they shall not be an even number--hence five. The rabbis do not care for this, as the term which is translated, "They may condemn," is written in the singular, and is only read in the plural.
The rabbis taught: Civil cases are decided by three; but if one is known to the majority of the people as an expert, he alone may decide. Said R. Na'hman: e.g., I decide cases alone, without consulting any other rabbis. And so also said R. Hyya.
The schoolmen propounded a question: What does R. Na'hman mean by saying: As, for instance, I? Does he mean similar to him, who knew the laws traditionally and by common sense, and was also so empowered by the Exilarch; but if there
was one who was equal to him in wisdom, but had no permission, his decision must not be respected? Or does he mean to say, if one were equal to him in wisdom he might so do without permission? Come and hear: Mar Zutra, the son of R. Na'hman, made an error in one of his decisions, and came to question R. Joseph whether he must make good the error. To which he answered: If he was appointed by the parties as a judge, he had not to pay; if not, he must pay. Infer from this that he who is appointed by the parties may so do even without permission from a higher court.
Said Rabh: If one wants to decide cases, and not be responsible in case of an error, he shall get permission from the Exilarch. And so also said Samuel.
It is certain that here in Babylon a permission from the Exilarch holds good for the whole country; and the same is the case from the Prince in Palestine, for the whole of Palestine and Syria. And it is also certain that if one has a permission from the Exilarch, he may practise in Palestine. As the following Boraitha states: The sceptre shall not depart from Judah. These are the exilarchs of Babylon, who rule over Israel with their sceptres. "And a lawgiver," etc., [Gen. xlix, 10] means the grandsons of Hillel, who are teaching the Torah among the majority of the people. The question, however, is, if with the permission of the princes they may judge in Babylon?
Come and hear: Rabba b. Hana had decided a case and erred, and came to question R. Hyya whether he had to pay, To which he answered: If the parties appointed you as a judge, you have nothing to pay; but if not, you have. Now, as Rabba, b. Hana had permission from Palestine, and would be obliged to pay if not appointed, it is to be inferred that the permission from Palestine did not hold good in Babylon. But is it not a fact that Rabba b. R. Huna, when he would quarrel with the house of the Exilarch, used to say: I did not take any permission from you, but from my father, who had it from Rabh, and the latter from R. Hyya, and the latter from Rabbi? This was concerning worldly affairs only. But if the permission of Palestine does not hold good for Babylon, why did Rabba b. Hana take it? For the cities which are situated on the boundary of Palestine. How was the case when he took the permission? When he was about to descend from Palestine to Babylon, R. Hyya said to Rabbi: My brother's son, Rabba b. Hana, descends to Babylon. And Rabbi answered: He may teach the
law, decide civil cases, and may also decide upon the blemishes of first-born animals which are prohibited to be slaughtered without a blemish on their body. 1
When Rabh was about to go to Babylon, R. Hyya said to Rabbi: The son of my sister goes to Babylon. Said Rabbi: He may teach the law, decide cases, but not about blemishes of the first-born of animals.
Why did R. Hyya name the first "my brother's son" and the second "my sister's son"? And lest one say that so was the case, did not the master say: Abu, Hana, Shila, Marta, and R. Hyya all were the sons of Abba b. Aha Kharsala of Khaphri? (Hence Rabh, who was Abu's son, was also his brother's son--why did he say "my sister's"?)
Rabh, who was his brother's and also his sister's son (on his mother's side), he named him "the son of my sister"; but Rabba b. Hana was the son of his brother only. And if you wish, it may be said that R. Hyya named him "my sister's," because of his great wisdom. As it is written [Prov. vii. 4]: "Say unto wisdom, Thou art my sister." But why should Rabh not be permitted to decide about blemishes? Was he not wise enough for this? Is it not a fact that be was wiser than any of his contemporaries? Or was he not acquainted enough with the kind of blemishes? Did not Rabh say: I have dwelt eighteen months with a pasturer of cattle to learn the blemishes which are temporary, and those which remain forever? This was done that Rabba b. Hana should be respected, as Rabh was highly respected even without that. And if you wish, it might be said that because of the fact itself, that Rabh was an expert concerning blemishes, it was not allowed to him to practise, for the reason that Rabh would allow such blemishes as other experts were not aware of, and people who should see that would act likewise, relying upon Rabh, so that they would finally allow the animal which had a temporary blemish to be slaughtered.
It is said above: "Rabbi said: He shall teach law." To what purpose was this said? Does such a scholar as Rabh need such a permission for teaching? This was said because of the
following case: It happened that Rabbi went into a certain place and saw that they kneaded dough without offering a sample for legal purity. And to the question why they did so, their answer was: There was a disciple who taught: Water of Bzein (swamp) does not make articles subject to defilement. In reality, however, the expression was: "Mee Beizim," which means eggs; and they took it for Bzein, and acted accordingly. And therefore it was taught: A decree was enacted that a disciple should not teach unless he had the permission of his master.
Tanchun, the son of R. Ami, happened to be in the city of Hthar, and lectured: One may wet wheat and pound for peeling on Passover. And they said to him: Is not there here R. Mani of the city of Zur, who is a great scholar, and there is a Boraitha: A disciple must not decide a Halakha at the place of his master, unless distant from him three parsas--which distance Israel took when travelling in the desert. And he answered: I was not aware of this.
R. Hyya saw a man standing in a cemetery, and said to him: Are you not the son of so and so, who was a priest? He said: Yea, but my father was one of those who follow their eyes. He saw a divorced woman and married her, and with this he annulled the priesthood.
It is certain, when one takes a permission to give judgment, in part, that it holds good (as so it was with Rabh). But how is it if the permission was conditionally for a certain time? Come and hear what R. Johanan said to R. Shauman: You have our permission until you shall return to us.
The text says: Samuel said: If it was decided by two, their, decision is valid; but they are called an impertinent Beth Din. R. Na'hman repeated this Halakha, and Rabha objected from the following. If two are defending and two are accusing, and one says, "I do not know how to decide," judges must be added; now, if it were as you say, that the decision of two is valid, let, then, the decision of the two hold good? There it is different, as they start with the intention that it should be decided by three. He then objected to him from the following: Rabban Simeon b. Gamaliel said: Judgment in accordance with the strict law must be decided by three. In an arbitration, however, two suffice; and the strength of the mediation is greater than that of the law; as, if there were two who had decided a case in accordance with the law, although they were appointed by the parties, they (the parties) may retract. But
if a mediation was made by the arbitrators, no retraction can take place. And lest one say that the rabbis differ with R. Simeon, did not R. Abuhu say: All agree that a decision passed by two is valueless? And he answered: Do you oppose one man to another (Abuhu may say so, and Samuel otherwise)?
R. Abba objected to R. Abuhu from the following: If one has decided upon a case--freed the guilty, or pronounced guilty the innocent, or decided unclean a thing which is clean, or vice versa, the act is valid and he must pay from his pocket. (Hence we see that even the decision of one is respected.) This Boraitha speaks of when the parties had appointed him for this purpose. But if so, why must he pay? It means, if they tell him: We appoint you to decide this case in accordance with the biblical law.
Said R. Safras to R. Abba: Let us see what was the error. If the error was that he decided against a Mishna, did not R. Shesheth say in the name of R. Assi that he who made an error as to a Mishna might retract from his decision? Hence such a decision is not valid, and he has not to pay from his pocket. Therefore it must be said that it means he erred in his opinion. How is this to be understood? Said R. Papa: E.g., there were two Tanaim and two Amoraim who differed in a case, and it was not decided with whom the Halakha prevailed. However, the world practised according to one party, and he had decided the case according to the other party; and this could be called erring in one's opinion.
Shall we assume that in that case in which Samuel and R. Abuhu differ, the Tanaim of the following Boraitha also differ: Arbitrating must be done by three persons. So is the decree of R. Meir. The sages, however, maintain: One is sufficient? The schoolmen who heard this thought that all agree that arbitration is similar to a strict law, and therefore they assumed that the point of their difference was: R. Meir holds three are needed, and the sages that two suffice. Nay, all agree that a strict law must be decided by three, and the point of their differing is: Whether arbitration must be similar to a strict law according to one it must, and according to the other it must not.
Shall we assume that there are three Tanaim who differ concerning arbitration? One holds: Three are needed; the second, two; and the third, that even one is sufficient. Said R. Aha b. R. Ekha, according to others R. Yema b. Chlamia: He says two are needed holds that even one is sufficient; and only
to the end that they should be able to testify to this case as witnesses did he say two. Said R. Ashi: Infer from this that an arbitration does not need a sudarium; for if it should be necessary, why should not the one who maintains that three are needed be satisfied with two and a sudarium? The Halakha, however, prevails: An arbitration needs a sudarium.
The rabbis taught: Even as a strict law needs three, so is it with arbitration. However, when the decision is already given in accordance with the strict law, an arbitration cannot take place. R. Eliezer, the son of R. Jose the Galilean, used to say: It is prohibited to mediate, and he who should do so sins; and he who praises the mediators despises the law, as it is written [Ps. x. 3]: "The robber blesseth himself when he hath despised the Lord." But it may be taken as a rule that the strict law shall bore the mountain, as it is written [Deut. i. 17]: "The judgment belongs to God." And so was it said by Moses our master. But Aaron (his brother) loved peace, ran after it, and used to make peace among the people, as it is written [Mal. ii. 6]: "The law of truth was in his mouth, and falsehood was not found on his lips; in peace and equity he walked with me, and many did he turn away from iniquity." And R. Jehoshua b. Karha also said: Arbitration is a meritorious act, as it is written [Zech. viii. 16]: "With truth and the judgment of peace, judge ye in your gates." How is this to be understood? Usually, when there is judgment, there is no peace; and vice versa. It must then be said that an arbitration is a judgment which makes peace. So also was it said about David [II Sam. viii. 16]: "And David did what was just and charitable 1 unto all his people."
Here, also, "just" and "charitable" do not correspond; as if just, it could not be called charitable, and vice versa. Say, then, it means arbitration, which contains both.
The first Tana, however, who said above that arbitration is prohibited, explains the passage thus: He, David, judged in accordance with the strict law--he acquitted him who was right, and made responsible him who was so, according to the law, but when he saw that the culpable one was poor and could not pay, he used to pay from his pocket. Hence he did judgment to one and charity to the other. Rabbi, however, could not agree with such an explanation, because of the expression,
unto all his people"; and according to the above explanation, it ought to be "to the poor." Therefore said he: Although he did not pay from his pocket, it was counted as a charitable act that he delivered a theft out of the hands of the defendant.
R. Simeon b. Menasia said: If two persons brought a case before you, before you have heard their claims, and even thereafter, but you are still not aware to whom the strict law inclines, you may say to them: Go and mediate among yourselves. But after you are aware who is right according to the strict law, you must not advise them to mediate, as it is written [Prov. xvii. 14]: "As one letteth loose (a stream) of water, so is the beginning of strife; therefore before it be enkindled, leave off the contest"; which means, before it be enkindled you may advise a mediation, but not after you know with whom the law is. Similar to this is: If two persons came with a case before you, one being mighty (who can harm you) and the other common, you may say to them, "I am not fit to judge between you," so long as you have not heard their claims; or even thereafter, not knowing as yet to whom the law inclines. But you must not say so after you are aware; as it is written [Deut. i. 17]: "Ye shall not be afraid of any man."
R. Jehoshua b. Karha said: Whence do we deduce that if a disciple were present when a case came before his master, and saw a defence for the poor and an accusation for the rich (which his master might overlook), he must not keep silence? From the verse just cited. R. Hanin said: One must not keep in his words out of respect for any one; and witnesses also must be aware for whom they testify, and for whom their testimony goes. And who is he who will punish them for bearing false witness? As it is written [Deut. xix. 17]: "Then shall both the men who have the controversy stand before the Lord." And the judge must also be aware of same, as it is written [Ps. lxxxii. i]: "God standeth in the congregation of God; in the midst of judges doth he judge." And so also it reads [II. Chron. xix. 6], which was said by the king Jehoshaphat: "Look (well) at what ye are doing; because not for man are ye to judge, but for the Lord."
And should the judge say: Why should I take the trouble and the responsibility to myself?--therefore it is written at the end of this verse: "Who is with you in pronouncing judgment." Hence the judge has to decide according to what he sees with his eyes.
What is to be understood by final judgment? Said R. Jehudah in the name of Rabh: When the judge is able to pronounce: You, so and so, are guilty, and you, so and so, are right. Said Rabh: The Halakha prevails with R. Jehoshua b. Karha. Is that so? Was not R. Huna a disciple of Rabh, and his custom was, to question the parties of a case before him: Do you desire strict law, or arbitration? Hence we see that he did not begin with mediation; and R. Jehoshua said that mediation is a meritorious act. R. Jehoshua, with his statement, means also to say: Ask the parties which they like better. But if so, it is the same as what the first Tana said (i.e., it is prohibited to arbitrate after the conclusion, but not before the case is begun)? The difference between them is--according to R. Jehoshua it is a meritorious act; and according to the first Tana it is only a permission for the judge, but not meritorious. But then it is the same as R. Simeon b. Menasia said. There is also a difference, as according to the latter we must not advise an arbitration after hearing the claim, which is not according to the former. All the Tanaim mentioned above differ with R. Thn'hum b. Hnilai, who said: The above-cited verse [Ps. x.] was said concerning the golden calf [Ex. xxxii. 5]: "And when Aaron saw this." What did he see? Said R. Benjamin b. Jeptheth in the name of R. Elazar: He saw Chur, who was killed by the people. And he thought: "If I do not listen to them, they will do likewise with me, and will commit a sin, as written [Lam. ii. 20]: 'Shall there be slain in the sanctuary of the Lord the priest and the prophet?' And they will have no remedy. It is better for them that I should make the golden calf, and to that probably there will be a remedy by repenting."
There was one who used to say: It is well for him who is silent while being reproved; and if he is accustomed to do so, it prevents a hundred evil things which he might have to overcome through quarrelling. Said R. Samuel to R. Jehudah: This man only repeats what is already written in the above-cited verse [Prov. xvii. 141]. 1 There was another who used to say: A thief is not killed for stealing two or three times (i.e., do not wonder if the punishment does not occur at once, as finally it will come). And Samuel said to R. Jehudah: This is also repeating the verse [Amos, ii. 5]: "Thus hath said the
[paragraph continues] Lord, For three transgressions of Israel, and for four, will I not turn away their punishment."
There was another who used to say: Into seven pits does the man of peace fall and come out, and the wicked does not come out from the first into which he falls. And to this also said Samuel to R. Jehudah: It is a repetition of the verse, Prov. xxiv. 16: "For though the righteous were to fall seven times, he will rise up again"; and should the wicked fall in one, 1 he will not rise again.
There was another who used to say: If the court levied on one's mantle for a bet to his neighbor, he might chant a song and go on his way. And to this the same said to the same: This also is to be understood from [Ex. xviii. 23]: "The whole of this people will come to its place in peace."
There was another who used to say: She slumbers, and the basket which was placed on her head fell down. And also to this said Samuel: The same is understood of [Eccl. x. 18]: "Through slothful hands the rafters will sink," etc. And there was another who used to say: The man on whom I relied raises his fist against me. To which Samuel referred [Ps. xli. 10]: "Yea, even the man that should have sought my welfare, in whom I trusted, who eateth my bread, hath lifted up his heel against me."
There was one more who used to say: When love was strong, we--I and my wife--could place ourselves on the flat of a sword. Now, when love is gone, a bed of sixty ells is not sufficient for us. To which R. Huna said: We can see this from the Scriptures in [Ex. xxv. 22]: "I will speak with thee from above the cover." And a Boraitha. states that the ark measured nine spans, and the cover one; hence, altogether, it measured ten. Also in [I Kings vi. 2]: ". . . house which was built . . . sixty cubits in length." And finally we read [Is. lxvi. 1]: ". . . where is there a house that ye can build unto me?" (I.e., when the Tabernacle was built, ten spans sufficed, and at the exile no house in the world could be found in which the Shekinah would rest.)
R. Samuel b. Na'hmani in the name of Jonathan said: A judge who judges truth to his fellow-men makes the Shekinah to rest in Israel; as the above-cited Psalm lxxxii. I reads: "God
standeth in the congregation of God; in the midst of judges doth he judge." And those who do the contrary influence the Shekinah to leave, as it is written [ibid. xii. 6]: "Because of the oppression of the poor, because of the sighing of the needy, now will I arise, saith the Lord."
The same said again in the name of the same authority: A judge who takes away from one and gives to another, against the law, the Holy One, blessed be He, (in revenge) will take souls from his house. Thus it is read [Prov. xxii. 22, 23]: "Rob not the poor because he is poor, neither crush the afflicted in the gate; for the Lord will plead their cause, and despoil the life of those that despoil them."
And he said again, in the name of the same authority: A judge should always consider as if a sword lay between his shoulders and Gehenna was open under him. As it is written [Solomon's Song, iii. 7, 8]: "Behold, it is the bed which is Solomon's; sixty valiant men are round about it, of the valiant ones of Israel. All of them are girded with the sword, are expert in war; every one hath his sword upon his thigh, because of the terror in the night--which means the terror of Gehenna, which is equal to the night.
R. Jashyha, according to others R. Na'hman b. Itz'hak, lectured: It is written [Jer. xxi. 12]: "O house of David, thus hath said the Lord: Exercise justice on (every) morning, and deliver him that is robbed out of the hand of the oppressor." Do, then, people judge only in the morning, and not during the entire day? It means, if the thing which you decide is clear to you as the morning, then do so; but if not, do not. R. Hyya b. Abba in the name of R. Jonathan, however, said: This is inferred from [Prov. vii. 4]: "Say unto wisdom, Thou art my sister," which means, if the thing is as certain to you as that it is prohibited for you to marry your sister, then you may say it, but not otherwise.
R. Jehoshua b. Levi said: If there are ten judges discussing about one case, the collar lies upon the neck of all of them. But is that not self-evident? It means even a disciple who is sitting before his master (although the result does not depend upon him).
R. Huna used to gather ten disciples of the college when a case came before him, saying: In case of error, let them also have sawings of the beam. And R. Ashi, when it happened that there was the carcass of a slaughtered animal to examine if
it was legal, used to gather all the slaughterers of the city, for the above-said purpose.
When R. Dimi came from Palestine, he said: R. Na'hman b. Kohen lectured: It is written [ibid. xxix. 4]: "A king will through the exercise of justice establish (the welfare of) a land; but one that loveth gifts overthroweth it"; meaning, if the judge is like unto a king, who needs not the favor of any one, he is establishing the land; but if like unto a priest who goes around the barns asking for heave-offering, he overthroweth it. The house of the Prince had appointed a judge who was ignorant, and it was said to Jehudah b. Na'hman, the interpreter of Resh Lakish: Go and be his interpreter. He bent himself to hear what was said for interpretation; but the judge said nothing. Jehudah then exclaimed: Woe unto him that saith to the wood, "Awake!" "Rouse up!" to the dumb stone. Shall this teach? Behold, it is overlaid with gold and silver, and no breath whatever is in its bosom [Hab. ii. 19]. And the Holy One, blessed be He, will punish his appointer, as the following verse reads: "But the Lord is in his holy temple: be silent before him, all the earth."
Resh Lakish said: If one appoints A judge who is not fit to be such, he is considered as if he were to plant a grove in Israel. As it is written [Deut. xvi. 18]: "Judges and officers shalt thou appoint unto thyself"; and ibid. 21 it reads: "Thou shalt not plant unto thyself a grove-any tree." R. Ashi added: And if this were done in places where scholars are to be found, it is considered as if one should do it at the altar, as the cited verse continues: "near the altar of the Lord thy God."
It is written [Ex. XX. 23]: "Gods of silver and gods of gold," etc. Is it only prohibited from gods of silver, and of wood we may? Said R. Ashi: This means the judge who is appointed by means of silver and gold. Rabh, when he went to sit on the bench, used to say: By my own will I go to be slain (i.e., if I make an error I shall be punished for it), without attending the needs of my house; and I enter, clear the court, and I pray that the departing should be like the entering (as he came without sin, so should he depart). And when he saw the crowd run after him, he used to say: "Though his exaltation should mount up to the heavens, and his head should reach unto the clouds, yet when he but turneth round will he vanish for ever" [Job, xx. 6, 71 (to quiet his excitement).
Mar Zutra the Pious, when he was carried on the shoulders
of his followers on the Sabbaths before the festivals (each Sabbath before the three festivals they used to preach festival laws), he used to say [Prov. xxvii. 24]: "For property endureth not forever, nor doth the crown remain for all generations."
Bar Kapara lectured: Whence do we deduce what the rabbis said: Be deliberate concerning judgment? From [Ex. xx. 23.]: "Neither shalt thou go up by steps upon my altar"; and the next verse is These are the laws of justice."
R. Eliezer said: Whence do we know that the judge should not step upon the heads of the whole people (the hearers of the lectures used to sit on the floor during the lectures, and one who passed among them appeared as if he were stepping on their heads)? From the same cited verse. It treats: Thou shalt set before them the laws of justice; it ought to be: Thou shalt teach them? Said R. Jeremiah, and according to others R. Hyya b. Abba: It means the preparation of things belonging to judgment: the cane, the strap, the cornet, and the sandal. As R. Huna, when he used to go on the bench, used to say: Bring here all the things above mentioned.
It is written [Deut. i. 16]: "And I commanded your judges at that time." This was a warning to the judges that they should be careful with the cane and straps, which were in their hands to punish them who rebelled. Farther on it is written: Hear the causes between your brethren and judge righteously." Said R. Hanina: This is a warning to the court that it shall not listen to the claims of one party in the absence of the other (in civil cases); and the same warning is to one of the parties--he shall not explain his claim in the absence of his opponent. "You shall judge righteously" means, you shall deliberate the case carefully, and make it just in your mind, and only thereafter you may give your decision.
It is written: "Between a man and his brother, and his stranger." Said R. Jehudah: It means, even between a house and its attic. (I.e., if it were an inheritance, the judge must not say: You both need dwellings-what is the difference, if one take the house and one the attic? But he must appraise the value of each and then give his decision. "And his stranger" means, if you hire your house to a stranger for a dwelling, it cannot be said: What is the difference, if I give him an oven or a stove? But you must give him according to the conditions. So R. Jehudah. Farther on it reads: "Ye shall not recognize (respect) persons in judgment." According to R. Jehudah, it
means: You shall not recognize him if he is your friend; and according to R. Elazar, it means: You shall not recognize him as strange to you, if he is your enemy.
The host of Rabh had to try a case before Rabh, and when he entered he said to Rabh: Do you remember that you are my guest? And he answered: Yea, but why? And he said: I have a case to try. Rejoined Rabh: I am unfit to be a judge for your case (because you reminded me that you favored me some time ago). And he appointed R. Kahana to judge the case. R. Kahana, however, had seen that he relied too much upon Rabh, so that he would not listen to him. He then said to him: If you listen to my decision, well and good; and if not, I will put Rabh out of your mind (i.e., I will put you under the ban). It reads farther on "The small as well as the great shall ye hear." Said Resh Lakish: It means, you shall treat a case of one peruta with the same care and mind as you would treat a case involving a hundred manas. To what purpose was this said? Is this not self-evident? It means, if two cases come before you, one of a peruta and one of one hundred manas, you shall not say: It is a small case, and I will see to it after.
"Ye shall not be afraid of any man; for the judgment belongeth to God." Said R. Hama b. R. Hanina: The Holy One, blessed be He, said: "It is the least for the wicked to take away money from one and give it to another illegally"; but they are troubling me that I shall return the money to its owner. "And I commanded you at that time." Above it reads: "I commanded your judges." Said R. Elazar in the name of R. Simlai: This was a warning for the congregation, that they should respect their judges; incidentally, also, a warning to the judges that they should bear with the congregation. To what extent? Said R. Hana, according to others R. Sabbathi: Even [Num. xi. 12] "as a nursing father beareth the sucking child."
It treats [Deut. xxxi. 23]: "Thou must bring this people," etc. And in verse 7 it is written: "Thou must go with." Said R. Johanan: Moses said to Joshua: You and the elders shall rule over them; but the Holy One, blessed be He, said: "Thou shalt bring them (i.e., thou alone), because there must be one ruler to a generation, and not two or many.
There is a Boraitha: A summons must be by the consent of three judges. And this is in accordance with Rabha, who said: If the messenger of the court had summoned one in the
name of one of the three judges who are in the court, the summons is nothing unless he state it is in the name of all the three judges, provided it was not a court day; but on a court day he has to mention nothing.
"Double amount." R. Na'hman b. R. Hisda sent a message to R. Na'hman b. Jacob: Let the master teach us. In cases of fine, how many persons are needed? [What was the question--does not the Mishna state three? The question was, whether one judge, who is an expert, may do this, or not?] And the answer was: This is stated in our Mishna, in the double amount, and four and five fold-three. And it cannot be said it means three common men; for your grandfather said in the name of Rabh: Even ten commoners are illegal to decide cases of fine. Hence the Mishna means judges, of whom, nevertheless, three are needed.
"It may bring capital punishment." And what is it (meanwhile his claim is money--why should three not be sufficient)? Said Ula: The point of their differing is, if an evil tongue is to be feared (i.e., while he comes to the court complaining about his wife, witnesses may come and testify that she had indeed sinned; and then it is a crime of capital punishment). According to R. Meir, the fear of such is not to be taken into consideration; and according to the rabbis, it is. Rabha, however, maintains: The fear of an evil tongue is not taken into consideration by all of the parties; but the point of their difference is, if the honor of the first should be respected or not. And it treats that twenty-three were gathered for that case, and the husband claimed that he would bring witnesses that his wife had sinned. But thereafter he could not bring witnesses, and the case remained as a claim for money only, and then the twenty departed. And he asked them to decide at least his civil claim. According to R. Meir, this case, as a money matter, might be tried by three; but according to the rabbis, we must respect the honor of the judges gathered, and therefore even in the latter case all the twenty-three have to take part.
An objection was raised from a Boraitha which states: The sages said: If the claim was money, then three suffice; but if a crime which could bring capital punishment, then twenty-three are needed. And this is correct only according to Rabha's statement, viz.: If the beginning of the claim was money, then three; and if the beginning was crime, then twenty-three. But according to Ula's it is contradictory.
Said Rabha: I and the lion of our society, who is R. Hyya b. Abbim, have thus explained this: The Mishna treats of a case in which the husband brought witnesses that his wife had sinned, and his father-in-law brought witnesses who proved the first collusive. And his claim against the husband was money; and therefore three sufficed. But in a case where crime is charged, twenty-three are necessary.
Abayi, however, maintains: All agree that an evil tongue is to be feared; and they also agree that the honor of the first must be respected. The Mishna, however, speaks of a case in which the warning was as to capital punishment, but not stoning. (I.e., as will be explained in the proper place, one should not be put to death for a crime of which he was not warned that the punishment for it was death; and according to some, the warning must be: The punishment for such a crime is such and such a death. And as the punishment of adultery is stoning, and she was warned only of death in general, according to him who holds that the warning must state the kind of death, in this case no capital punishment can occur.) And this is in accordance with R. Jehudah, who said elsewhere: One is not put to death unless he was informed in the warning what kind of death he should die.
R. Papa maintains: It speaks of a scholarly woman who was aware of what kind of punishment pertained to such a thing; and the point of their differing is, if to a scholar warning is needed. And R. Ashi maintains: The warning was as to stripes, instead of capital punishment; and the point of their differing is, if a trial involving stripes needs twenty-three, in accordance with the opinion of R. Ishmael, or not. 1 And Rabhina maintains: It speaks of when one of the witnesses was found a relative, or incompetent to be a witness; and the point of their difference is, if the testimony of the other witnesses should be ignored because of the incompetent one, or not (explained at length in Tract Maccoth). And if you wish, it can be said that it speaks of when one was warned by some others, but not by the witnesses; and there are some of the Tanaim who hold that the warning holds good only when it was made by the witnesses. And it might also be said that the witnesses contradicted one another, at the cross-examination, concerning certain unimportant things (e.g., how he and she were dressed when the crime was committed),
but they did not contradict each other concerning the important thing (e.g.., the date and hour). And there is a difference between Tanaim whether such a contradiction is to be taken into consideration, or not?
R. Joseph said: If the husband brought witnesses that she had sinned, and the father brought witnesses who proved them collusive, the witnesses of the husband are put to death, but do not pay the prescribed fine. If, however, the husband brought a third party of witnesses, who proved collusive the second party, they are to be punished both with death and with payment of fine to the husband.
Rabha said: If witnesses testify that A had sinned with a betrothed woman, and thereafter they be found collusive, they are put to death, but do not pay the fine; if, however, they testified that A had sinned with the daughter of B, who was betrothed, they pay the fine also. And the same is the case if they testify that one had connection with an ox, and they were found collusive; if, however, they testify with the ox of so and so, they have to pay the fine to the owner of the ox also. But to what purpose did he state the other case--is it not the same as the first? Because he himself was in doubt concerning the following case: If one testified that so and so had connection with my ox, should he be trusted or not? Shall we say that only a testimony which incriminates one's self is not to be trusted--because one is kin to himself and cannot make himself wicked, but in a case where one's property is involved, we do not say that he is kin to his money, and therefore he should not be trusted. After deliberating, however, he decided that the testifying concerning his ox should be trusted, as the latter case is not taken into consideration.
"The cases of stripes," etc. Whence is this deduced? Said R. Huna: It is written [Deut. xxv. i]: "And they judge them," which is plural, and no less than two; and as a court must not be of an even number, one is to be added--hence it is three. In the same verse it reads: "And they justify . . . and they condemn," which is also plural, and no less than two -hence two and two are four, and with the three mentioned above it is seven?
The latter terms are needed for that which Ula said: Where is to be found a hint in the Scriptures concerning collusive witnesses? [A hint--does it not read (ibid. xix. 19): "Then shall ye do unto him as he had purposed to do unto his brother"?
[paragraph continues] Where is the hint that collusive witnesses are to be punished with stripes?] From the above-cited terms, "and they shall justify . . . condemn the wicked: Then shall it be, if the guilty man deserve to be beaten," etc., which is not to be understood as meaning the court only, as the words, "they shall justify the righteous," would be superfluous in that case. And therefore it is to be explained thus: If there were witnesses who had made the righteous guilty, and thereafter other witnesses came and justified the righteous who were indeed right, and made guilty the witnesses who accused them; then, if the former were to be punished with stripes, if found guilty, the same punishment is to be meted to the guilty witnesses.
But is there not a negative commandment in Ex. xx. 16: "Thou shalt not bear false witness"? This negative commandment is counted among those who do no manual labor; and for the transgression of such, punishment of stripes is not applied.
"In the name of Ishmael it was said," etc. What is his reason? Said Abayi: The analogy of expression, Rosha (guilty). It reads [Deut. Xxv. 2]: "Guilty man," and [Num. xxxv. 31] "Who is guilty of death." As in case of death, twenty-three are needed, the same is the case with stripes. Rabha, however, maintains: His reason is simple, as stripes take the place of that. Said R. Aha, the son of Rabha, to R. Ashi: If so is the case, why must he be examined by the court to see if he can stand the forty stripes? Let him be beaten without any examination; and if he cannot stand them, let him die. And he answered: It reads [Deut. xxv. 3]: "And thy brother be rendered vile before thy eyes." Hence if you beat, you must beat one who is still alive, but not a dead body. If so (said R. Aha again), why does a Boraitha state that if the examination shows that he can stand only twenty, he is beaten with that number, which can be made a multiple of three, say eighteen only? Let him receive twenty-one; and if be cannot receive the last stripe let him die, as the last stripe was on a body which was still alive (i.e., thrice seven are twenty-one, and as he would not die by twenty according to the examination, the twenty-one would still be on a live body). Rejoined R. Ashi: The verse reads: "Thy brother thus rendered vile before thy eyes," which means that after the stripes he shall still be thy brother, which would not be the case if be died while being beaten.
"To the intercalary month," etc. It does not state for the
consideration of the intercalary, nor does it state for the consecration of the month; but for the intercalary itself, why are three needed? Let it be not consecrated at the thirtieth day, and it will become intercalary by itself (i.e., if the thirty-first day be consecrated as the first of the next month, the past month will be intercalary with one day). Said Abayi: Read: For the consecration of the month. And so also we have learned in a Tosephtha: For the consecration of the month and the proclamation of a leap year, three. So is the decree of R. Meir. Said Rabha: You say: Read "for the consecration"; but it is stated "the intercalary." Therefore, he maintains, the consecration in the additional day (e.g., the thirtieth) must be by three; but after the day is over, no consecration is needed. And it is in accordance with R. Elazar b. Zadok, who said (Rosh Hashana, p. 1): If the moon was not seen at the usual time, no consecration is needed, as it was already consecrated by heaven. R. Na'hman says: The consecration after the thirtieth day must be by three; but at the thirtieth no consecration takes place at all.
And it is in accordance with Plimi, who says in the following Boraitha: When the moon is seen at her usual time, no consecration is needed; but if not at the usual time, then it must be consecrated. R. Ashi, however, maintains: It is to be understood, the consideration if the month should be intercalary, and the expression "to intercalary" means the consideration of it. And because it needs to teach to proclaim a leap year, it says also intercalary. Hence only to the consideration, but not to the consecration, which is in accordance with R. Eliezer, who said: A month must not be consecrated at any time, as it is written [Lev. xxv. 10]: "Ye shall hallow the fiftieth year," from which we infer that a year may be consecrated, but not months.
"Rabban Simeon Gamaliel," etc. There is a Boraitha: How was it said by R. Simeon b. Gamaliel that it began with three, was discussed by five, and concluded by seven? Thus: If one of the three says it must be considered, and the other two say it is not needed, then the individual's opinion is abandoned. If, however, vice versa, two more must be added to discuss the matter; and then, if two say it needs, and three say no, the majority is considered. And if vice versa, then two more must be added, and the decision is according to the majority.
The numbers three, five, and seven, to what have they a
similarity? R. Itz'hak b. Na'hmani and one of his colleagues, who was R. Simeon b. Pazi, and according to others just the reverse, differ. One said that the three were taken from the three verses specifying the blessings of the priests (Num. vi. 24, 25, 26). And the other said: Three from the "three doorkeepers" mentioned in II Kings, xxv. 18; and five, from [ibid. 19l: "The five men of those that could come into the king's presence"; and the seven from "the seven princes of Persia and Media" [Esther, i. 14].
R. Joseph taught the same as the latter, and Abayi questioned him: Why did not the master explain this to us before now? To which he answered: I was not aware that you needed the explanation. Has it happened that you questioned me, and I would not answer?
The rabbis taught: A year must not be intercalated with one month, except by them who are invited for it by the Nashi. It happened with Rabban Gamaliel, who commanded that seven persons should be invited for the morrow in his attic, for the purpose of the intercalation of the year, that on the morrow, when he came, he found eight persons, and said: He who was not invited shall leave. Samuel the Little then arose and said: I am the one who was not invited. I came here, not to take part in the intercalation, but to get experience in the practice of this ceremony. To which the former answered: Sit down, my son; sit down. All the years which have to be intercalated might be done by you. But so was the decision of the sages, that such must be done only by the persons who were invited. (Says the Gemara:) In reality, it was not Samuel the Little, but some other, and he did so only not to bring shame upon his colleague. It happened that as Rabbi was lecturing he perceived the odor of garlic, and he said: He who has eaten garlic shall leave. R. Hyya then rose and left the place; and every one, seeing R. Hyya go out, did the same. On the morrow R. Simeon, the son of Rabbi, met R. Hyya, and questioned him: Was it you who disturbed my father yesterday? And he answered: Save God! Such a thing would not be done in Israel by myself. And from whom did R. Hyya learn this? From R. Meir, as is stated in the following Boraitha: It happened with a woman who came to the college of R. Meir, saying: One of you has betrothed me, but I do not know who it was. Then R. Meir arose and wrote her a divorce, and handed it to her; and after him, all the people in the college did likewise. And from whom did
[paragraph continues] R. Meir learn this? From Samuel the Little; and Samuel the Little from Shechanyah b. Yechiel, who said to Ezra [Ezra, x. 2]: "We have indeed trespassed against our God, and have brought home strange wives of the nations of the land; yet now there is hope in Israel concerning this thing." And he, Shechanyah, learned this from Jehoshua b. Nun, of whom it is said [Josh. vii. 10]: "Get thee up; wherefore liest thou upon thy face? Israel hath sinned," etc.
The rabbis taught: Since the death of the last prophets, Haggai, Zechariah, and Malachi, the Holy Spirit has left Israel; nevertheless they were still used to a heavenly voice. It happened once that they had a meeting in the attic of the house of Guriah, in the city of Jericho, and a heavenly voice was heard: Among these people there is one who is worthy that the Shekinah should rest upon him; but his generation is not fit. And the sages turned their eyes on Hillel the Elder. And when he departed, they lamented him. "Woe, pious! Woe, modesty! O thou disciple of Ezra." The same happened again when they had a meeting in an attic in the city of Yamnia, and the heavenly voice said: Among these people is one worthy that the Shekinah should rest upon him, but his generation is not fit. And the rabbis turned their eyes on Samuel the Little. When he departed, he also was lamented: "Woe, pious! Woe, modesty! O thou disciple of Hillel!"
The rabbis taught: A year must not be intercalated without the Prince's consent. It happened once that Rabban Gamaliel went to one ruler in Syria, and remained there longer than was expected; and the sages had intercalated the year on the condition that Rabban Gamaliel should agree; and then, when he came, he said, "I agree," and the year was intercalated without any other ceremony.
The rabbis taught: A leap year should not be made unless necessary, because of the spoiled roads, bridges requiring to be repaired, and because of the ovens where the paschal lambs were to be roasted, and they were not yet dry; and for them who reside in exile, and had left their places for Jerusalem to offer the paschal lamb, but could not reach in such a short time; but not if there was still snow or cold, and also not for them who resided in exile and had not as yet left their places for Jerusalem.
The rabbis taught: A leap year should not be made because of the kids, lambs, and pigeons which are too young. But this
may be taken as a support. How so? Said R. Janai in the name of R. Simeon b. Gamaliel: We inform you that the pigeons are still soft, and the lambs still thin, and the time of spring has not yet arrived; and it has pleased me to add to this year thirty days. An objection was raised from the following Boraitha: How much is to be added to a leap year? Thirty days. R. Simeon b. Gamaliel said: One month of twenty-nine days. Said R. Papa: If they wish, they can make it with thirty days; and if they wish, with one month of twenty-nine days. Come and see the difference between the old, mighty generation and that of the new, modest one. There is a Boraitha: It happened with Rabban Gamaliel, who used to sit on a step in the court of the Temple, that Johanan his scribe was standing before him, and three pieces of parchment were lying before him. And be told him: Take one parchment, and write to our brethren in Upper Galilee and to our brethren in Lower Galilee: May your peace be increased! We inform you that the time has come to separate tithe of the mounds of olives. And take another piece of parchment, and write to our Southern brethren: May your peace be increased! We inform you that the time has come to separate tithe of the garden sheaves. And take the third one, and write to our brethren in exile in Babylon, and to our brethren in Media, and to all other Israelites who are scattered in exile: May your peace be increased everlastingly! We inform you that the pigeons are soft, and lambs thin, and the time of spring has not yet come, and it pleases me and my colleagues to add to this year thirty days. (Hence Gamaliel wrote: "pleased me and my colleagues"; and Simeon his son did not mention his colleagues.) (Says the Gemara:) Perhaps this happened after R. Gamaliel was discharged and reappointed, as then he became more modest.
The rabbis taught: For the following three things a leap year is made: because of the late arrival of spring; of the unripeness of tree-products; and for the late arrival of Thkhupha (the equinox). 1 When two of the three things occur, the year is made intercalary; but not if one of them. And when one of the reasons is spring, all rejoiced. And R. Simeon b. Gamaliel said: When Thkhupha (the equinox) was the reason. And the schoolmen questioned: How is he to be understood? Does he mean that they rejoiced when the Thkhupha (the equinox) was
one of the reasons, or does he mean to say that if it was the reason it suffices to make the year intercalate even without other reasons? The question remains undecided.
The rabbis taught: For the following three lands the leap year was made: Judea, Galilee, and the other side of the Jordan. For two of them, but not for one. If it happened that Judea was one of them, all rejoiced, because the offer of the omer (as the first of the harvest) was brought only from the land of Judea.
The rabbis taught: The year is to be made intercalary only in the land of Judea; but if it was made already in Galilee, their act is valid. However, Hananiah, the man of Anni, has testified that if the leap year was made in Galilee it was not considered. And R. Jehudah b. R. Simeon b. Pazi said: The reason of Hananiah is [Deut. xii. 5]: "Even unto his habitation shall ye refrain," which means, all your repairing should be only in the habitation of the Omnipotent.
The rabbis taught: A leap year is to be made only during the day-time, and if it was done in the night it is not intercalate. And the same is the case with the consecration of the month; it holds good in the day-time, and not in the night.
The rabbis taught: A leap year must not be made in the years of famine. And there is a Boraitha: R. Meir used to say: It is written [II Kings, iv. 42]: "And there came a man from Ba'al-shalishah, and brought unto the man of God bread of the firstfruits, twenty loaves of barley-bread," etc. And we know by tradition that the city of Ba'al-shalishah was the most fruitful city in the whole land of Israel, in which the fruit became ripe previous to all other cities; and nevertheless at that time it was not ripe, but only one kind of grain; and not wheat, but barley, as so it reads. And lest one say it was before the time the omer was to be brought, therefore it is written at the end of this verse: "Give it unto the people, that they may eat." Hence, under such circumstances, that year ought to have been intercalary. And why was it not made so by Elisha? Because it was a year of famine, and every one went to the barns in order to get something to eat, and therefore it was not intercalated.
The rabbis taught: The year must not be intercalary before Rosh Hashana (i.e., no meeting must be appointed to discuss upon the necessity of an additional month in the next year). Even if it were so done, it is not to be taken into consideration. However, if circumstances compelled them to do so, they may
do it immediately after Rosh Hashana; but the additional month must be no other one than Adar. Is that so? Was not a message sent to Rabha: A couple came from the city of Lecarte, and caught an eagle, and in their hands were found things which were made in the city of Luz (e.g., Thkhalth, for Tshitzith). And by the kindness of the Merciful One, and because of their unripeness, they were redeemed, and left in peace. And the descendants of Na'hshun desired to establish one nazib (ruler) more, but the Aramaic had prevented them. However, the prominent men of the cities held a meeting, and added one ruler (nazib) in that month in which Aaron (the high-priest) died. (Hence we see that a meeting about a leap year was appointed in the month of Ab, as Aaron died in that month?) 1
The discussion, and even the establishment, may be done even before Rosh Hashana; but it must be kept secret until the day of New Year is past. But whence do we know that with the above-mentioned word "nazib" they meant "a month"? From [I Kings, iv. 7]: "And Solomon had twelve superintendents (nazibun) . . . for the king's household, one month in the year"; but ibid. 19 reads: "Besides the one superintendent (nazib) who was in the land?"
R. Jehudah and R. Na'hman--one said: One manager over all the superintendents. And the other maintains that this nazib was for the intercalary month.
The rabbis taught: A leap year must not be made in one year, for the next; and also three successive years must not be intercalary. R. Simeon, however, said: It happened with R. Aqiba, that he established three leap years, one after the other, while he was in prison. And he was answered: This is no evidence, as the court had established each leap year in its proper time.
The rabbis taught: A leap year must not be appointed, neither in the Sabbatic year nor in the following year. But when were they used to be established? On the eve of the Sabbatic year. The house of Rabban Gamaliel, however, used to appoint it for the year following the Sabbatic.
The rabbis taught: No appointment of a leap year must be because of defilement. R. Jehudah, however, maintains it may,
and adds: It happened with King Hezekiah, who had established such because of defilement, and thereafter he prayed for forgiveness. As it is written [II Chron. xxx. 18]: "For a large portion of the people, even many out of Ephraim and Manasseh, Issachar, and Zebulun had not cleansed themselves, but ate the Passover not as it is written. However, Hezekiah prayed for them, saying: "The Lord, who is good, will grant pardon for this."
R. Simeon said: If they had established it because of defilement, it is intercalary; and Hezekiah prayed for forgiveness because the law dictates that only the month of Adar shall be intercalary. He, however, intercalated the month Nissin. R. Simeon b. Jehudah, however, said in the name of R. Simeon: He prayed for forgiveness because he seduced Israel to establish a second passover.
The master said: He intercalated the month of Nissin. Did he not hold the tradition [Ex. xii. 2]: "This month shall be unto you the chief of months," which means Nissin; and it is written, this is Nissin, but no other month shall be named Nissin? He erred in that which is said in the name of Samuel: In the thirtieth day of Adar no intercalary month must be appointed, because this day was fit that it should be the first of Nissin. And he, Hezekiah, did not hold this theory. There is also a Boraitha which states: In the thirtieth day of Adar no month must be intercalated because it is fit to be the first of Nissin.
But how is it if, notwithstanding this, it was established on that day? Said Ula: Then the month must not be consecrated on that day. But how is it if it was consecrated also? According to Rabha, the consecration abolishes the intercalary; and according to R. Na'hman, both hold good--the intercalary and the consecration. Said Rabba to R. Na'hman: Let us see! From Purim to Passover are thirty days; and on Purim we begin to lecture about the law of Passover. Now, if they should appoint another Adar on the thirtieth day after the lectures of Passover were already heard, people would not believe then that another month was appointed, and so they would use leavened bread on Passover. And he answered: Why, they would believe, as they know the establishment of a leap year depends on counting; and they would say that it was not as yet clear to the rabbis--the reckoning of this year--until the thirtieth day of Adar arrived.
R. Jehudah in the name of Samuel said: A leap Year must not be established unless the Thkhupha was less with a greater part of the month, which are sixteen days. So is the decree of R. Jehudah. R. Jose, however, said: Twenty-one days. And both took their reference from [Ex. xxxiv. 22]: And the feast of ingathering at the closing (Thkhuphat--equinox) of the year. One holds that the whole feast should be in the new Thkhuphat; and the other holds that it is sufficient if a few days of the feast should occur in the new Thkhuphat. How is this to be understood? If they hold that the day in which the Thkhupha occurs is counted to the past Thkhuphat, why, then, is it necessary for R. Jehudah that the Thkhuphat shall be less with sixteen, and to R. Jose with twenty-one days? Even if it would be less with fifteen days, according to R, Jehudah, and twenty days, according to R. Jose, the whole festival will not be on the new Thkhuphat according to R. Jehudah, as the fifteenth day of Nissin, which is the first day of the feast, and in which the Thkhuphat occurs, is counted to the past Thkhuphat; and also according to R. Jose, if the Thkhuphat occurs on the twenty-first day, which is counted to the past, not one of the festival days would occur on the new Thkhuphat, as the festival begins on the fifteenth, and the seventh ends with the twenty-first. Therefore it must be said, of the day in which the Thkhuphat occurs, both R. Jehudah and R. Jose count it as the beginning of the new Thkhuphat. 1
"Laying the hand of the elders upon sacrifices." The rabbis taught: It is written [Lev. iv. 15]: "And the elders of the congregation shall lay their hands," etc. (The expression in Hebrew is, Vsomkhu Ziqnye Hoedha"--literally, "and they shall lay," the elders," "of the congregation.") From the expression Hoedha, which means the congregation, instead of elders of the congregation, it is deduced that it means the prominent of the congregation, and from the plurality of Vsomkhu ("and they shall lay," which means no less than two) and the plurality of the elders who are also two, it is deduced four persons; and as the number of the court must not be even, one is added--hence it makes five. So is the decree of R. Jehudah. R. Simeon, however, maintains: There is only one
plurality in the elders, who are two, and one is added for the purpose mentioned above, making three only. And there is a Boraitha: To laying the hand upon the elders, and laying the hands of the elders upon the sacrifices, three are needed. What does this mean? Said R. Johanan: Laying the hand upon the elders means, to give one the degree of Rabbi: Said Abayi to R. Jose: Whence do we deduce this? From [Num. xxvii. 23]: "And he laid his hand upon him," etc. Then let one be sufficient, as Moses was only one person; and lest one say that Moses took the place of the Large Sanhedrin, who were seventy-one, then say that to confer a degree seventy-one are needed? This difficulty remains.
Said R. Aha b. Rabha to R. Ashi: Do we lay the hands upon the man to whom we want to give such a degree? And he answered: We support him with that, that we name him Rabbi and give him the permission to judge about fines upon them who deserve it.
Is it indeed so--that one man cannot bestow a degree? Did not R. Jehudah in the name of Rab say: Behold, the memory of that person shall remain blessed forever--I mean, R. Jehudah b. Baba, as, if not ben Baba, the law of fines would be forgotten from Israel. It happened once that the government passed an evil decree upon Israel, that he who bestowed a degree should be put to death, and the same should be done with him who received the degree. The city where the degree was conferred should be destroyed, and even the boundaries which were used while giving the degree should be torn out. Jehudah b. Baba then went and sat between two great mountains, and between two large cities--between the two suburban limits of the cities of Usha and Sprehen--and conferred the degree of Rabbi on five elders; and they were: R. Meir, R. Jehudah, R. Simeon, R. Jose, and R. Elazar b. Shamuas. According to R. Ivia, there was a sixth: R. Nehomai. When the enemy got wind of it, Jehudah said to them: My children, run away. And to their question: Rabbi, what will become of you? he answered: I shall remain before them as a stone which cannot be moved. It was said that three hundred iron spears were put by the enemy into his body, making it as a sieve. (Hence we see that even one person only is authorized to give a degree?) There were some other persons with him, but they were not mentioned because of the honor of Jehudah b. Baba. Was indeed Meir elevated by Jehuda? Did not Rabha b. Hanah say in the name
of Johanan that R. Aqiba gave the degree to R. Meir? Yea, R. Aqiba did so, but it was not accepted; and from R. Jehudah b. Baba he accepted.
R. Jehoshua b. Levi said: The custom of giving degrees must not be used out of Palestine. What does he mean? Shall we assume that loss of fines should not be judged at all out of Palestine? This is not so, as there is a Mishna: Sanhedrins are to be established in Palestine as well as in other places out of Palestine. He means that one must receive his degree in Palestine only.
It is certain that a degree of Rabbi is not considered when the bestower is out of and the receiver is in Palestine. But how is it if the bestower is in Palestine and the receiver is out? Come and hear: R. Johanan was troubled for R. Shaman b. Aba, who was not present and could not receive the degree R. Johanan wished to honor him with. R. Simeon b. Zerud and his colleague Jonathan b. Ekhmai, according to others vice versa--one of them who was present they supported with a degree, and the one who was not did not receive such.
R. Hanina and R. Hoseah were two about whom R. Johanan troubled himself very much, to honor them with the degrees they deserved, but was always prevented, whereat he was very sorry. Said they to him: Let master not worry, as we are descendants of the house of Eli. And R. Samuel b. Na'hman in the name of R. Jonathan said: Whence is it deduced that the descendants of Eli are prevented by Heaven from receiving degrees? From [I Sam. ii. 32]: "And there shall not be an elder in thy house in all times"--which cannot be meant literally--"an old man," as it is written [ibid. 33]: "And all the increase of thy house shall die as (vigorous) men." Hence it means a degree of an elder (scholar).
R. Zera used to hide himself so as not to be honored with a degree, because of R. Elazar's statement: Be always misty, in order to have a better existence. Thereafter, when he heard another statement of the same authority, "One is not raised to a great authority unless all his sins are forgiven by Heaven," then he went to receive a degree. When he was graduated as a rabbi, his followers sang for him thus: "There is no dyeing, no polishing, no painting, and nevertheless it is handsome and full of grace." When Ami and Assi were graduated as rabbis, likewise people sang of them thus: "Of such men--of such people--appoint rabbis for us, but not from the sermonisers";
and according to others, "not steel-hearted and impudent men"
R. Abuhu, when he came from college in the court of the Zaiser, the matrons of Zaiser's house used to sing for him: "Great man of his people! ruler of his nation! candle of light! may thy coming be welcomed in peace."
"Case of the heifer." The rabbis taught [Deut. xxi. 2]: Then shall thy elders and thy judges go forth," etc. Elders, two, and judges, two, are four, etc. (will be translated in Tract Souta, as the proper place).
"Plants of the fourth year and second tithe," etc. The rabbis taught: What is to be considered second tithe of which the value is not known? Rotten fruit, sour wine, and rusty coins. They also taught: Such second tithe must be redeemed by the appraisement of three buyers who all know the price of such stock; but not by three laymen who do not know the exact price. Among the buyers maybe a Gentile, and also the owner of the stock. And R. Jeremiah questioned: How is it if the three were partners? Come and hear: One and his two wives may redeem the second tithe of which the value is not known. Hence it is allowed. This is no support, as this Boraitha may speak of such as were apart in business. E.g., R. Papa and his wife, the daughter of Aba of Sura (who used to do business for herself).
"Consecrated articles," etc. Our Mishna is not in accordance with R. Eliezer b. Jacob of the following Boraitha, who said: Even for a small fork of the sanctuary, ten persons are needed to appraise the value for redeeming. Said R. Papa to Abayi: R. Eliezer is correct that it needs ten, as he may hold with the statement of Samuel, who said: Priests are ten times mentioned in the portion which speaks of consecrated things. But whence did the rabbis take three? This difficulty remains.
"Arakhin . . . movable properly." What are they? R. Giddle in the name of Rabh said: If one vows, the value of this utensil is to be consecrated, then it must be appraised for its value, and he must pay. R. Hisda, however, said in the name of Abayi: It means, if one vows his own value, and appoints movable property for the collection. R. Abuhu said: If one vows his own value for the treasurer of the priests, when he came to collect, if he collects from movable property, three suffice to appraise it; but if from real estate, ten are needed. Said R. Aha of Diphthi to Rabhina: It is correct that three are
needed to appraise articles which are to be redeemed from the sanctuary; but why are three needed for bringing into the sanctuary? And he answered: It is common sense. What is the difference between bringing in and taking out? The reason of appraisement is because an error can occur by which the sanctuary would suffer; and this can take place in both taking out and bringing in.
"A priest," etc. Said R. Papa to Abayi: It is correct that R. Jehudah requires that one of them should be a Cohen, as in that portion a Cohen is mentioned; but what is the reason of the rabbis, who do not require him--and for what purpose is a Cohen mentioned, according to them? This difficulty remains.
"By ten, and one of them a priest," etc. Whence is all this deduced? Said Samuel: In this portion the word Cohenim is mentioned ten times, and only one of them is needed for itself; and all the others are considered as an exclusion after an exclusion, as to which there is a rule that such comes to add something. And therefore we add nine Israelites to one Cohen. R. Huna b. R. Nathan opposed, saying: Why not say: Add five Israelites to five Cohenim? This difficulty also remains.
"The value of men," etc. But does, then, a man become consecrated? Said R. Abuhu: If one vows, the money he is worth (not according to age, which is prescribed biblically) must be appraised as if he were a slave sold on the market; and a slave is equal to real estate. Therefore it needs ten: R. Abim questioned: How is it if one vows the value of his hair, and it should be cut off? Shall we say that things which ought to be cut off are considered as already cut, and movable, and the appraisement needs three only; or, so long as it is attached to the body, it is considered as the body itself, and ten are needed? Come and hear: If one consecrated his slave, no transgression is committed by using him for work. R. Simeon b. Gamaliel said: If one uses his hair, it is a transgression: And we are aware that he speaks when the hair in question is still attached to the body and is ready to be cut off. Hence there is a difference of opinion among the Tanaim.
"The stoning of an ox . . . and the owner put to death." Said Abayi to Rabha: Whence do we know this verse means to equal the judgment of the ox to that of its owner? Perhaps it is meant literally--that its owner also shall be put to death? Said Hezekiah, and so also was it taught by his school: It is written [Num. xxxv. 21]: "He who smites him shall be put
to death, for he is a murderer." From which we infer that only when he himself smote is he to be put to death: but he is not to be killed for the death by his ox.
"The wolf, the lion," etc. Said Resh Lakish: This is in case they have killed some one; but if not, it is not a meritorious act to kill them. [Hence we see that he holds that these beasts can be considered the property of one who domesticates them.] R. Johanan, however, maintains: In any case, it is a meritorious act to kill them. [Hence he holds that they cannot be domesticated, and are considered ownerless.]
There is an objection from our Mishna: R. Eliezer says: Every one who hastens to kill them is rewarded--which is correct according to R. Johanan, who may explain the word "rewarded"--with the skin of the animal; but according to Resh Lakish, who said, only when they have killed, there is a rule that when so it was, the rabbis considered them as if they were already sentenced to death by the court, and in such a case it is prohibited to derive any benefit from them. What, then, means Eliezer by the expression "he is rewarded"? It means that he will be rewarded by Heaven. There is a Boraitha in accordance with Resh Lakish, as follows: An ox, as well as other animals or wild beasts which kill, must be judged by twenty-three. R. Eliezer, however, maintains: An ox which has killed, by twenty-three; but as to all wild beasts, he who hastens to kill them will be rewarded by Heaven.
"R. Aqiba says," etc. Is it not the same as the first Tana? They differ in the case of a serpent.
"A whole tribe," etc. Let us see what sin a whole tribe may commit. Shall we assume that it has violated the Sabbath? We know that there is a difference between an individual and a majority only in the case of idolatry; but in the other commandments there is no difference, according to the Scripture. And if it means that the whole tribe was accused of idolatry, and they should be judged as a majority, then our Mishna is neither in accordance with R. Jashiah nor with R. Jonathan of the following Boraitha: How many people must be in the city which shall be misled? From ten to one hundred. So is the decree of R. Jashiah. R. Jonathan, however, maintains: From one hundred up to the majority of the tribe. Now we see that even Jonathan says the majority, but not the whole tribe. Said R. Mathna: It means the Prince of the tribe only. As R. Ada b Ahaba explains [Ex. xviii. 22]: "Every great matter" means:
the matter of a great man; so also here, by the whole tribe is meant the head of it. Rabhina, however, said: The Mishna speaks of a case in which the whole tribe was accused of idolatry, your difficulty being, do we then judge them as a majority? We may say, Yea! although their punishment is similar to that of an individual who is to be stoned. And this is in accordance with R. Hama b. Jose, who said in the name of R. Oseah: It is written [Deut. xvii. 5]: "Then shalt thou bring forth that man or that woman who has committed this wicked thing, unto thy gates"--which means only an individual, but not the whole city, to thy gates. The same is the case with a whole tribe; only an individual can be brought to the gates to be stoned, but not the whole tribe. (Hence they are judged by seventy-one, as a majority.)
"False prophet," etc. Whence is this deduced? Said R. Jose b. Hanina: From an analogy of expression--"presume"--which is to be found in the case of a false prophet [Deut. xviii. 20] and in the case of a rebelling elder [ibid. xvii. 12]. As in the latter case seventy-two are needed, so also in the former. But is not the expression "presumptuously" used in the cited verse concerning death, of which. the verse reads; and death is judged by seventy-three only? Therefore said Resh Lakish: The analogy is in the expression "Dobhor," which is mentioned in both the verses cited.
"High-priest," etc. Whence is this deduced? Said Ada b. Ahaba: From the above-cited Ex. xviii. 22, which is explained as the matter of a great man.
"To decide upon battles," etc. Whence is this deduced? Said R. Abuhu: From [Num. xxvii. 21]: "And before Elazar the priest shall he stand . . . he and all the children of Israel with him, and all the congregation." "He" means the king. "All Israel with him means the priest who was anointed to be the leader of the war. And all the congregation" means the Sanhedrin. But perhaps the cited verse means that only for the just-mentioned persons the Urim is allowed to be used; but not for common men. And the question, Wherefrom is it taken that seventy-one are needed to decide about battles? remains. Therefore it must be said, as R. Aha b. Bizna in the name of R. Simeon the Pious said: A harp was placed over the bed of David, and when midnight arrived a north wind used to blow in it, so that the harp would play by itself and awake David, who used to get up and occupy himself with the Torah until the
morning star arose. And thereafter the sages of Israel used to enter to him, saying: Lord our king, thy nation Israel needs food. And to his answer: Go, then, and make business among yourselves, they answered him: A handful of food can never satisfy a lion, and a pit can never be filled with the earth taken out from it. Whereupon David decided: They shall go to a battle. Then they consulted Achithophel, took also advice from the Sanhedrin, and asked the Urim, etc.
R. Joseph said: Whence do we know from the Scripture that such was the custom? From [I Chron. xxvii. 34]: "And after Achithophel (came) Yehoyada, the son of Benayahu, and Ebyathar; and the captain of the king's army was Joab. Achithophel was the counsellor, as it reads [II Sam. xvi. 23]: "And the counsel of Achithophel, which he counselled in those days." Yehoyada means the Sanhedrin, as it is written of his father Benayahu [I Chron. xviii. 17]: "And Benayahu, the son of Yehoyada, was over the Kerethites and the Pelethites," which means the Sanhedrin, to whom Yehoyada his son was the head after Benayahu. And why was the Sanhedrin named Kerethites and Pelethites? Because the literal meaning of the two terms in Hebrew is "cutting" and "wonder"; and the Sanhedrin, with their decisions, used to cut off and do wonderful things. "And Ebyathar" means the Urim Vethumim; and then comes "the captain of the king's army, Joab," which means war. And R. Itz'hak b. Ada, and according to others B. Abudimi, said that [Ps. lvii. 9] "Awake, psaltery and harp, I will wake up the morning dawn," is a support to R. Aha b. Bizna's statement.
"For enlarging, the city," etc. Whence is this deduced? Said R. Shimi b. Hyya: From [Ex. xxv. 9]: "In accordance with all that I show thee, the pattern of the tabernacle, and the pattern of all instruments thereof, even so shall ye make it"--which means, so shall ye do in the later generations. Rabha objected from the following: "All the utensils which were made by Moses, the anointment sanctified them; however, the utensils which were made after him, the using of them for service consecrated them." And why? Apply, "So shall ye do," etc., to the utensils also; they shall need anointment in the later generations also? With this it is different, as [Num. vii. i]: "And had anointed them, and sanctified them," means them with anointment, but not those which should be made in a later generation. But how is it inferred from the passage that for the utensils made in the later generations anointing is prohibited?
[paragraph continues] Said R. Papa: It is written [ibid. iv. 12]: "Wherewith they minister in the sanctuary." We see, then, that the passage makes them sanctified by ministering with them.
"Appointing supreme councils," etc, This is taken from Moses, who had established the first Sanhedrin; and the person of Moses is equalized to seventy-one of them.
The rabbis taught: Whence do we know it is a duty to appoint judges? From [Deut. xvi. 18]: "Judges and officers," etc. But whence do we know that it is a duty to appoint them to each tribe? From [ibid., ibid.]: "Throughout thy tribes." (From this verse is deduced that judges as well as officers are to be appointed to each tribe.) R. Jehudah maintains: It was also necessary to appoint one who should rule over all the judges; as this verse reads, "Shalt thou appoint," which means that the Great Sanhedrin, who ruled all the judges in the lower houses, should be appointed by them. R. Simeon b. Gamaliel said: It reads: "Throughout thy tribes, and they shall judge," which means, it is a meritorious act to appoint judges to a tribe from its own people.
"To condemn a misled town," etc. Whence is this deduced? From [ibid. xvii. 5]. "Then shalt thou bring forth that man," etc. An individual you may bring to thy gates, but not the whole city, as said above by R. Hama b. Joseph (here mentioned Hyya, instead of Hama).
"Town on the boundary," etc. Why so? Because it reads, "From thy midst," but not from a boundary.
"Nor three of them," etc. Because it is written [ibid. xiii. 13]: "One of thy cities." But why two? Because of the word "cities."
The rabbis taught: One, but not three. But perhaps one, and not two? Because it reads cities, two are meant. Hence with the term one, one, not three, is meant. Rabh used to say at one time that for one court it is not allowed to make three, but for two or three courts it is allowed; and at another time he said that it is not allowed to do so, even in several courts? And the reason is, that Israel must not be made bald-headed. Said Resh Lakish: This is said only in one country; but in several countries, it may. R. Johanan, however, is of the opinion that even then it must not, for the reason that the land should not be bald-headed. There is a Boraitha in accordance with R. Johanan. Three misled cities must not be made in the land of Israel; two, however, may--e.g., one in Judea and one in
[paragraph continues] Galilee; but not two in Judea, nor two in Galilee. And if it were near to the boundary, even one must not be proclaimed misled; for, should it come to the ears of the heathens, they might destroy the whole land of Israel. But why not deduce it from the passage which states "from thy midst," and not from the boundary? This is in accordance with R. Simeon, who used to explain the reasons of what is stated in the Scriptures.
"The Great Sanhedrin," etc. What is the reason of the rabbis, who said that Moses was as head of them? Because it reads [Num. xi. 16]: "And they shall stand there with thee," which means, and thou shalt remain with them. R. Jehudah, who says seventy only, maintains: It was necessary for Moses to remain with them, that the Shekinah should rest upon them.
The rabbis taught: It is written [ibid. xi. 26]: "And there remained two men in the camp." According to some, it means that their names remained in the urn. As, at the time the Holy One, blessed be He, said to Moses: Gather unto me seventy men of the elders of Israel, he thought: How shall I do it? Shall I appoint six of each tribe? Then there will be two more. Or shall I take five of each? Then there will be ten less. Or shall I appoint from two tribes five only, while from the others six each? Then will I bring jealousy among the tribes. So he chose six from each, and wrote on seventy tickets "Zaqan" (elder), and two he left blank; then mixed, and put all of them into the urn. Then he said: Go, each, and take your ticket. To those who drew "elder," he said: You are already sanctified by Heaven. But those who drew the blanks had no claim, as such was their lot.
Similar was the case from [ibid. iii. 47]: "Thou shalt take five shekels apiece for the poll." And to this Moses also said: How shall I do it? If I should say to one, "Give the shekels," he may answer, "The Levite has already redeemed me." Therefore he wrote on twenty-two thousand tickets "Levite"; and on two hundred and seventy-three he wrote "five shekels," mixed them, put them in the urn, and told the people: Each shall draw his ticket. To the one who drew "Levite" he said: You are free, as the Levite has redeemed you. And he who drew five shekels was told to pay the amount and go.
R. Simeon, however, said: Not their names remained in the urn, but themselves remained in the camp in doubt, saying: We
are not worthy of such a high appointment. And the Holy One, blessed be He, said: Because ye were modest, I will increase your grace. And what grace was increased to them? All the seventy had prophesied once, and ceased; but these two did not cease to prophesy. And what was their prophecy? They said: Moses shall die, and Joshua shall bring Israel to his land. Aba Hanin, however, said in the name of R. Elazar: They prophesied about the quail, saying, "Come up, quail. Come up, quail." And R. Na'hman said:, About Gog and Magog they prophesied, as it is written [Ezek. xxxviii. 17]: "Then hath said the Lord Eternal: Art thou (not) he of whom I have spoken in ancient days through means of my servants the prophets of Israel, who prophesied in those days (Shanim) years, that I would bring thee against them?" Do not read Shanim, but Shnaim, which means two. And who were the two who had prophesied at one period, with one and the same prophecy? Eldad and Medad.
It is correct in respect to him who said above that their prophecy was, "Moses shall die," what is written [Num. xi. 28]: "My lord Moses, forbid them." But in respect to them who said they prophesied about other things, why, then, should they be forbidden? Because it was not seemly for them thus to prophesy in the presence of Moses. What is meant by the words, "forbid them"? He meant to say: Appoint them, they shall occupy themselves with the needs of the congregation, and they will be destroyed by themselves.
Whence do we know that three more are needed, as, after all, sentence of guilt by a majority of two cannot take place; as, if eleven defend and twelve accuse, then there is only a majority of one; and if ten defend and thirteen accuse, there is a majority of three? Said R. Abuhu: Such a case can be only when there is a necessity to add more judges according to all. (I.e., in case eleven accuse and the same number defend, and one of them says: I am in doubt. And in such a case all agree that judges must be added, as the one who is in doubt cannot be counted; and then two more are to be added. And if the two who were added also accuse, there is a majority of two.) And such also can be found in the Great Sanhedrin, in accordance with R. Jehudah, who said: There was an even number of seventy. R. Abuhu says again: In case more judges are to be added, an even number may be made in the Small Sanhedrin also. Is this not self-evident? Lest one say that the one who says he is in
doubt is counted, and if thereafter he gives a reason for his decision after deliberating he may be listened to, he comes to teach us that as from the time he is in doubt he is not to be counted at all, so after the deliberation he may not be listened to.
R. Kahana said: If all the persons of the Sanhedrin are accusing, the defendant becomes free. Why so? Because there is a tradition that such a trial must be postponed for one night. as perhaps some defence may be found for him; but if all accuse him, it is not to be supposed that some will find any defence for him over night, and therefore they are no longer competent to decide in his suit.
R. Johanan said: The persons who are chosen to be members of the Sanhedrin must be tall, men of wisdom, of good appearance, and of a considerable age; and, also, they should understand something in cases of witchcraft; and they must also know seventy languages, so that they shall not need to hear a case through an interpreter. R. Jehudah in the name of Rabh said: In a city in which there are not to be found two persons who can speak seventy languages, and one who can understand them although he cannot speak, Sanhedrin must not be established. In the city of Bethar were three; and in the city of Yamiam were four, namely: R. Eliezer, R. Jehoshua, R. Aqiba, and Simeon of Tehmon their disciple, who was not of age to become a rabbi.
An objection was raised from the following: A Sanhedrin in which three of them could speak seventy languages was considered a wise one; and if four, it was considered the highest one. We see, then, that three who could speak were needed? Rabh holds with the Tana of the following Boraitha: If two, it is a wise one; and if three, it is the highest one.
There is a rule that, where there is to be found throughout the Talmud the expression "the man who learned in the presence of the sages," Levi before Rabbi is meant; and where the expression, "discussed before the sages," Simeon b. Azi, Simeon b. Zoma, Hanan the Egyptian, and Hayanya b. Hkhinai are meant. R. Na'hman b. Itz'hak taught five persons--the four mentioned above, and the fifth was Simeon of Tehmon. Where it is mentioned, "our Masters in Babylon," Rabh and Samuel are meant; "our Masters in Palestine," R. Abbi is meant; "the judges of the Exile," Karna is meant; "the judges of Palestine," R. Ami and R. Assi; "the judges of Pumbeditha," R.
[paragraph continues] Papa b. Samuel; "the judges of Nahardea," R. Ada b. Minumi; "the elders of Sura," R. Huna and R. Hisda; "the elders of Pumbeditha," R. Jehudah and R. Eina; "the geniuses of Pumbeditha," Eiphah and Abimi sons of Rabha; "the Amoraim of Pumbeditha," Rabba and R. Joseph; "the Amoraim of Nahardea," R. Hama. If it is said "the Nhardlaien taught," Rami b. Berokha is meant. But was it not said by Huna himself: "It was said in the college"? Therefore it must be said that "Hamnuna" is meant. "It was said in Palestine," R. Jeremiah is meant; "a message was sent from Palestine," R. Jose b. Hanina is meant. And where it is said, "it was ridiculed in Palestine," R. Elazar is meant. But do we not find a message was sent from Palestine: According to R. Jose b. Hanina it is so and so? Hence R. Jose b. Hanina cannot be meant in the expression, "there is a message from Palestine"? Therefore it must be reversed. Where it is said, "a message from Palestine," R. Elazar is meant; and "it was ridiculed in Palestine," R. Jose b. Hanina is meant.
"How many shall a city . . . one hundred and twenty," etc. What is the reason of that number? Twenty-three of the Small Sanhedrin, and three rows of twenty-three each (hearers), make ninety-two; and ten idle men, who must always be in the houses of prayer and learning, make one hundred and two; and two scribes, two sextons, two parties for defendant and plaintiff, two witnesses, and two men who may be able to prove the witnesses collusive, and still two more who could prove the last ones collusive--hence in the total there are one hundred and fourteen. There is a Boraitha that in a city in which the following ten things do not exist, it is not advisable for a scholar to reside, and they are: Five persons to execute what the court decides; a treasury of charity (which is collected by two and distributed by three); a prayer-house, a bath-house, lavatories, a physician, a barber, a scribe, and a teacher for children. And according to others it was said in the name of R. Aqiba: In the city should be several kinds of fruit, as the consuming of fruit enlightens the eyes.
"R. Nehemiah," etc. There is a Boraitha: Rabbi said: Two hundred and seventy-seven. And there is another: Rabbi said: Two-hundred and seventy-eight. And there is no contradiction, as one Boraitha is in accordance with R. Jehudah, who needs only seventy for the Great Sanhedrin.
The rabbis taught: It is written [Ex. xviii. 21]: "And place
these over them, as rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens." Rulers of thousands were six hundred; rulers of hundreds were six thousand; rulers of fifties, twelve thousand; and rulers of tens, sixty thousand. Hence the total number of the officers in Israel were seventy-eight thousand and six hundred.Footnotes
1:1 All this is explained in Tract Baba Kama.
2:1 According to some, the hyena: to others, another sort of a preying beast.
3:1 Leeser translates, "to deliver," the meaning of which is to save, as it is adopted in the original text.
3:2 Leeser's translation here is incorrect, not only according to the Talmud, but also to the punctuation of the verse.
7:1 The first-born of cattle which might be legally eaten, and also of an ass, had biblically to be submitted to the priest when the Temple was in existence; but after the destruction of the Temple they had to be raised until a blemish on their bodies appeared. But what kind of a blemish made them fit for slaughtering? They had to be examined by an expert who understand blemishes, and was familiar with the entire law; and a permission was needed for the expert.
10:1 Zdakha is the term in Hebrew, which means also charity.
12:1 It is inferred from the term in Hebrew, "Reshit Madun," which is not translatable into English.
13:1 The end of the verse, "but the wicked shall stumble into misfortune," is not found in the Scriptures. This is one of several places which shows that at that time in the Bible was another text.
19:1 All this will be explained in the proper place in succeeding volumes.
25:1 See Rosh Hashana, p. 12, second edition.
27:1 This riddle was sent at the time when it was prohibited by the Roman government to establish a leap year, and even to discuss about it. Therefore the message was sent as a riddle so as to be unintelligible to those not concerned.
29:1 The detailed explanation of all this would take too much space. However, it will be understood by those who know the order of the Jewish calendar. Although in our work it is of no importance, we hope that the reader will have an idea of it from our text, without the detailed explanation and the discussion following, omitted.
Commentary on Law, Oral Tradition
BOOK VIII, The Sanhedren, and the Legal Code; Jewish Thought evolution from Moses and Mount Sinai through Years of Jesus, to AD 200;
RULES AND REGULATIONS CONCERNING THE HIGH-PRIEST: IF HE MAY JUDGE AND BE JUDGED, BE A WITNESS AND BE WITNESSED AGAINST; THE LAWS REGARDING A DEATH OCCURRING IN HIS FAMILY AND THE CUSTOM OF THE CONDOLENCE. THE SAME RULES CONCERNING A KING. REGULATIONS AS TO WHAT A KING MAY AND MAY NOT ALLOW HIMSELF: HOW MANY WIVES AND HOW MANY STABLES FOR HORSES HE MAY HAVE; HOW HE MUST BE RESPECTED AND FEARED BY HIS PEOPLE, ETC.
MISHNA I.: The high-priest may judge and may be judged; he may be a witness and may be witnessed against; he may perform the ceremony of Halitzah, and the same may be done to his wife if he dies childless, or his brother may marry his wife in such a case. He, however, must not marry his brother's wife when his brother dies childless--because it is forbidden for a high-priest to marry a widow. If a death occurs in his family, he must not accompany the coffin; but if the coffin with those accompanying it are no longer visible in the street, he goes after them. And so with other streets-when they are not visible, he may enter the street, etc.; and in such manner he may follow the coffin to the gate of the city. So is the decree of R. Meir. R. Jehudah, however, maintains: He must not leave the Temple at all, as it reads [Lev. xxi. 12]: "And out of the sanctuary shall he not go."
When he, the high-priest, condoled with others, it was usual that the people went one after another, and the superintendent of the priests would place him between himself and the people (so that he could say a word of condolence to every one of them); but when he was being condoled with, the people used to say to him: We shall be your atonement (i.e., to us shall occur what ought to occur to you), and his answer was: You shall be blessed by Heaven. And at the condoling meal, all the people were placed on the floor, but he sat on a chair.
A king must not judge, and he is not judged; he must not be a witness, nor be witnessed against. The ceremony of Halitzah does not exist for him, nor for his wife. He does not marry
his childless brother's wife, and his brother must not marry his wife. R. Jehudah, however, maintains: If be was willing to give Halitzah or to marry his brother's wife, he may be remembered among the good. And he was told: Even if he is willing, he must not be listened to.
His widow must not remarry. R. Jehudah said: A king may marry the widow of a king, as so we found with David, who married the widow of Saul; as it reads [II Sam. xii. 8]: "And I gave unto thee the house of thy master, and (put) the wives of thy master into thy bosom."
GEMARA: Is it not self-evident that the high-priest may judge? It was stated, because it was necessary to say that he may be judged. But this is also self-evident; as if it were not permitted to judge him, how could he judge? Is it not written [Zeph. ii. 1]: "Gather yourselves," which Resh Lakish explained in Middle Gate (p. 287): "Correct yourself first, and then correct others"? Therefore we must say, because in the latter part it was necessary to teach that a king must not judge or be judged, it teaches also that the high-priest may judge and be judged. And if you wish, it may be said that it came to teach us what is stated in the following Boraitha: A high-priest who killed a person-if intentionally, he may be killed; and if unintentionally, he may be sent into exile: he transgresses a positive and a negative commandment, and is also, concerning other laws, considered as a commoner in every respect.
Intentionally-he may be killed. Is this not self-evident? It was necessary to state, if unintentionally, he might be sent into exile. But is this also not self-evident? Nay! One may consider, because it reads [Num. xxxv. 28]: "He shall remain until the death of the high-priest," that he who has a remedy to return to his land by the death of the high-priest shall be sent into exile; but he who has no such remedy should not; and there is a Mishna: He who kills a high-priest, or a high-priest who has killed a person, is not returned from the city of refuge for everlasting, and therefore he should not be exiled-it comes to teach us that it is not so. But perhaps it should be so? There is another verse [Deut. xix. 3]: "Every man-slayer," which includes a high-priest.
The Boraitha states: He transgresses a positive and negative commandment. Must he, then, transgress? It means to say that if it happened he should transgress a positive and a negative commandment, he is considered a commoner in every respect.
"Be a witness, and witnessed against," etc. May he be a witness? Have we not learned in the following, Boraitha: It reads [Deut. xxii. I]: "And withdrew thyself." There are cases from which one may withdraw himself, and there are others from which he may not. How so? E.g., a priest who sees a lost thing lying in a cemetery is not obliged to pick it up for the purpose of returning it; or if there were an old, respectable man, and it was not in accordance with his honor to bother with such a thing, or even if one's time is more valuable than the value of the lost thing, he may withdraw himself. Hence it is self-evident that it is not fit for a high-priest to go and witness. Why, then, should he be obliged? Said R. Joseph: He may be a witness in a case that concerns the king. But does not our Mishna state "that a king must not be a witness, and not be witnessed against"? Therefore said R. Zera: He may be witness in the case of a prince, the son of the king. A prince--is he not considered a commoner in all respects concerning the law? Say he may witness before the king. But have we not learned that the king must not be a member of the Sanhedrin; and also that both the king and the high-priest must not take part in the discussion about a leap year? For the honor of the high-priest, the king comes and remains with the Sanhedrin until the testifying of the high-priest ends, and then both depart; and the Sanhedrin themselves deliberate and decide the matter.
The text states that a king must not be a member of the Sanhedrin, nor a king and a high-priest engage in the discussion about a leap year. The first is deduced from [Ex. xxiii. 2]. 1 And the second--a king--because he would not like to add a month to the year, because of the increase of the wages of the military; and a high-priest, because of the cold (i.e., it is prescribed by the Scriptures to take during the Day of Atonement legal baths five times in cold water, and by adding a month, the month of Tishri would fall when in a usual year is the month of Cheshvi, which is much colder than Tishri).
Said R. Papa: Infer from this that the seasons of the year follow the usual months, and not according to the intercalary month. Is that so? We know that it happened, three pasturers
were standing and conversing in the presence of rabbis thus: One of them said: If there were enough heat so that the wheat which was sown in the beginning of the month, and the barley which was sown recently, should sprout, the month could be named Adar; and if not, it remains Shbat. The second said: If in the morning there is such a cold that the ox trembles from it, and in the middle of the day he should hide himself in the shadow of a fig tree, the month may be considered Adar; and if not, it remains Shbat. And the third said: If the winter has already lost its strength, and the air you blow from your mouth moderates the cold brought by the east wind, it is Adar; and if not, it remains Shbat. And as that year was not so in any of these cases, the rabbis intercalated it. Hence we see that the intercalary comes because of the cold, and not vice versa?
How can you conceive that the rabbis had relied upon the pasturers to intercalate a year? They relied upon their own reckoning, and the gossip of the pasturers was considered as a support only.
"He may perform the ceremony of Halitzah," etc. The Mishna makes no difference if the widow was from betrothal or from marriage. And this can be correct only with a marriage, as there is a positive commandment that a high-priest must marry a virgin, and a negative commandment that he must not marry a widow; while to marry the wife of his childless brother is a positive commandment only, which cannot invalidate a positive and a negative commandment. But if the widow was from betrothal, she is still a virgin; there remains only one negative commandment, he shall not take a widow. And there is a rule that a positive commandment invalidates a negative commandment? The positive commandment applies only to the first intercourse, but not thereafter, upon which the negative commandments rest. And if the first were allowed, he would come to commit a transgression thereafter, and therefore it is prohibited. And so also a Boraitha states.
"If death happens," etc. The rabbis taught: "He shall not leave the sanctuary" means he shall not go with them, but he may go out after them. How so? "When they are not visible in the street, he may appear," etc.
"To the gate of the city," etc. Is not R. Jehudah correct with his statement? R. Meir may answer: According to your theory, he must not leave the Temple for home? You must then explain this passage, that it means that he must not go out
from his sanctuary; and while he goes after them, when they are no longer visible, he will not come in contact with the corpse. R. Jehudah, however, fears that because of his sorrow it may happen that when he shall accompany them he will come in contact with the corpse, and violate his sanctity.
"Condole with others," etc. The rabbis taught: When he goes in the row to condole with others, his vice and the ex-high-priest are placed at his right, and the head of the priest's family at the mourners'; and all other people are placed at his left. But when he stands in the row to be condoled with by others, the vice only is placed at his right, but not the ex-high-priest, as he may be dejected, thinking that the ex-priest sees a revenge in him.
Said R. Papa: From the Boraitha three things are to be inferred: (a) That the vice and superintendent are identical; (b) that the mourners stand and the people pass by; and (c) that the mourners are placed at the left side of the condolers.
The rabbis taught: Formerly the custom was for the mourners to stand and the people to pass by; but there were two families in Jerusalem who had quarrelled, one saying: I must pass first. according to my dignity; and the other said: I must pass first: Therefore it was enacted that the people should stand and the mourners pass. Said Rami b. Aba: R. Jose reëstablished the old custom that the mourners shall stand and people pass, in the city of Sephorias. And he said also: The same enacted in the same city that a woman should not go into the street with her child following her, but that she should follow the child, because of an accident that happened. (Rashi explained: It happened that immoral men had stolen a child who was following its mother, and put it in a house; and while she was crying and searching for it, they said to her: Come with us and we will show it to you. And while doing so, she was assaulted.) He also said: The same enacted in Sephorias that women should talk to each other while they were at their toilet, for the purpose that men should not intrude.
R. Menashia b. Evath said: I questioned R. Jashiah the Great in the cemetery of Huzl, and he told me that a row is not less than ten persons, not counting the mourners, who must not be among them; and there is no difference if the mourners stand and the people pass, or vice versa.
"Being condoled with," etc. The schoolmen questioned: What did he say when he condoled with others? And they
were answered from a Boraitha, which states: He used to say: Be comforted.
"A king must not judge," etc. Said R. Joseph: This is concerning the kings of Israel; but the kings of the house of David are judged and judge. As it is written [Jer. xxi. 12]: "O house of David, thus said the Lord: Exercise justice on every morning." We see that they did judge; and if they were not to be judged, how could they judge?--as is said above by Resh Lakish. And what is the reason it is prohibited to the kings of Israel? Because an unfortunate thing happened as follows: The slave of King Janai murdered a person; and Simeon b. Cheta'h said to the sages: Notwithstanding that he is the slave of the king, he must be tried. They sent to the king: Your slave has killed a man. And Janai sent his slave to them to be tried. However, they sent to him: You also must appear before the court. As it is written [Ex. xxi. 29]: "Warning has been given to its owner"--which means the owner of the ox must appear at the time the ox is tried. He then came and took a seat. Said Simeon b. Cheta'h: King Janai, arise, so that the witnesses shall testify while you stand; yet not for us do you rise, but for Him who said a word, and the world was created. As it reads [Deut. xix. 17]: "Stand before the Lord." And the king answered: It must not be as you say, but as the majority of your colleagues shall decide. Simeon then turned to his right, but his colleagues cast their eyes upon the floor without any answer; and the same did his colleagues at his left. Simeon then exclaimed: You are all troubled in mind (disconcerted)! May the One who rules minds take revenge upon you. Gabriel came then and smote them to the floor, that they died. And at that time it was enacted that a king should neither judge nor be judged, neither be a witness nor be witnessed against.
"If he was willing to give Halitzah," etc. This is not so? Did not R. Ashi say: Even he who holds that if a prince has relinquished his honor it holds good, agrees that if a king does so his honor is not relinquished. As it is written [Deut. xvii. 15]: "Set a king over you"--which means, that respect (fear) for the king should always be before thy eyes (i.e., and in the ceremony of Halitzah the woman takes off his shoe, and spits before him, which is a disgrace for a king, and must not be done even if he is willing)? R. Jehudah, however, maintains: Where there is a biblical commandment, it is different.
"His widow must not remarry," etc. There is a Boraitha:
[paragraph continues] The sages answered R. Jehudah: The verse you refer to means, the woman who was ordained to him by the king, Saul; and they were Merab and Michal, his daughters.
The disciples of R. Jose questioned their master: How could David marry two sisters while they were both living? And he answered them: He married Michal after the death of Merab. And R. Jose said so in accordance with his theory in the following Boraitha, which states: He, R. Jose, used to lecture about passages in the Scriptures which were obscure, namely: It reads [II Sam. xxi. 8]: "And the king took the two sons of Rizpah, the daughter of Ayah, whom she had born unto Saul, Armoni and Mephibosheth; and the five sons of Michal, the daughter of Saul, whom she had borne 1 to Adriel, the son of Barzillai the Meholathite." But was Michal given to Adriel? Was she not given to Palti b. Layish? It reads [I Sam. xxv. 44]: "But Saul had given Michal his daughter, David's wife, to Palti, the son of Layish." Hence the Scripture equalizes the betrothing of Merab to Adriel to the betrothing of Michal to Palti b. Layish; as the betrothing of Michal to Palti was a sin (for she was already the wife of David, and according to the law a second betrothing is not considered at all), so also was the betrothing of Merab to Adriel a sin (for she was already David's wife). R. Jesh b. Karha, however, maintains: The betrothal of Merab to David was by an error. As it is written [II Sam. iii. 14]: "Give up to me my wife Michal, whom I espoused," etc. But what would he say to that passage which reads, "the five sons of Michal, the daughter of Saul"? He might say: Did, then, Michal bear them? Was it not Merab who bore them, whereas Michal merely brought them up? But they bore the name of Michal, because the Scripture considers the one who brings up an orphan as if it were born to him.
R. Hanina says: This is inferred from [Ruth, iv. 17]: "There hath been a son born unto Naomi," etc. Did, then, Naomi bear him? Was it not, in fact, Ruth who bore him? Therefore we must say that, though Ruth bore him, he was nevertheless named after Naomi, because she brought him up. R. Eleaser said: From [Ps. lxxvii. 16]: "The sons of Jacob and Joseph. Selah." Were they, then, born to Joseph, and not to
[paragraph continues] Jacob? They were born to Jacob, but Joseph fed them, and therefore they were named after him.
R. Samuel b. Nahmeni in the name of R. Jonathan said: He who teaches the Torah to the son of his neighbor, the Scripture considers him as if he were born to him. As it is written [Num. iii. 1]: "And these are the generations of Aaron and Moses"; and the following verse reads: "And these are the names of the sons of Aaron." It is only to say that they were born to Aaron and Moses taught them, and therefore they were named after him.
It is written [Is. xxix. 22]: "Therefore thus hath said the Lord unto the house of Jacob, he who hath re, deemed Abraham." Where do we find that Jacob redeemed Abraham? Said R. Jehudah. He redeemed him from the affliction of bringing up his children. (I.e., Abraham was promised by the Lord that He would multiply his children, and so the affliction of bringing them up was to lie upon Abraham; but, in fact, it was Jacob who was afflicted by bringing them up.--Rashi.) And this is what is written [ibid.]: "Not now shall Jacob be ashamed, and not now shall his face be made pale"--which means, he shall not be ashamed of his father and his face shall not become pale because of his grandfather.
In the Scripture there is written in some places "Palti," in other places "Paltiel." Said R. Johanan: His name was Palti; and why was he named Palti-El? "For God saved him from sin" (i.e., "Polat" in Hebrew means "to break through" and "El" means God, and according to tradition Palti did not live with Michal [although he slept with her in one bed], because of her betrothal to David). Said R. Johanan: The strength of Joseph was moderation on the part of Boas, and the strength of the latter was moderation on the part of Palti. "The strength of Joseph was moderation on the part of Boas"--as it is written [Ruth, iii. 8]: "And it came to pass at midnight, that the man became terrified," etc. And Rabh said: His body became as soft as (boiled) turnip heads. "And the strength of the latter was the moderation of Palti"--as with Boas it occurred only on one night, and with Palti it was continually. The same Said again: It is written [Prov. xxxi. 29]: "Many daughters have done virtuously, but thou excellest them all." "Many daughters" means Joseph and Boas. "That feareth the Lord shall indeed be praised" [ibid. 30] means Palti b. Layish. R. Samuel b. Nahmeni in the name of R. Jonathan said [ibid. 30]: "False is grace" means Joseph; "and beauty
vain "means Boas"; ". . . that feareth the Lord" means Palti b. Layish. According to others, "False is the grace" means the generation of Moses, "and vain is the beauty" means the generation of Joshua; ". . . that feareth the Lord" means the generation of Hezkiah. And still according to others, "False is the grace" means the generation of Moses and Joshua, "and vain is the beauty" means the generation of Hezkiah; ". . fear of the Lord," etc., means the generation of R. Jehudah b. Elii. As it was said: In the time of that rabbi six disciples had covered themselves with one garment (as they were very poor), and occupied themselves with the study of the Torah.
MISHNA II: If a death occurs in the house of the king, he must not leave the gate of the palace. R. Jehudah, however, maintains: If he is willing to accompany the coffin, he may do so, as we find that David accompanied the coffin of Abner [II Sam. iii. 31]: "And King David walked behind the bier." But he was told that David did so only to appease the spirit of the people. And at the condoling meal all the people are placed on the floor and he is seated on the dais.
GEMARA: The rabbis taught: In those places where it is customary for women to follow a coffin, they may do so; and where it is customary for them to precede the coffin, they have to do accordingly. R. Jehudah, however, maintains that women must always precede the coffin, as we find in the case of David, who followed the coffin, as in the above-cited verse in the Mishna. And he was told that this was only to appease the spirit of the people. And they were appeased, because David used to go from the men to the women and from the women to the men for this purpose. As it is written [ibid. 37]: "And all the people and all Israel understood on that day that it had not been of the king." Rabha lectured: It is written [ibid. 35]: "And all the people came to cause David to eat food while it was yet day." (The term "to cause" is expressed in Hebrew Le habroth, and according to him it was written Le hakhbroth. The first term means food and the second means to destroy--Korath); from which it is to be inferred that in the beginning the people came to destroy him because of the death of Abner, but after he had appeased them they caused him to eat. 1
Said R. Jehudah in the name of Rabh: Why was Abner punished? Because he ought to have warned Saul he should not kill the priest of Nob, and he did not do so. R. Itz'hak, however, maintains: He did warn, but was not listened to. And both infer this from the following verses [ibid. 33, 34]: "And the king lamented over Abner, and said, O that Abner had to die as the worthless dieth! Thy hands were not bound and thy feet were not put in fetters . . ." The one who said that he did not warn interprets thus: "Thy hands were not bound and thy feet were not put in fetters." Why didst thou not warn? And he who said that he did, but was not listened to, interprets it thus: "O that Abner should die as the worthless dieth! Thy hands were not bound . . ." And thou didst warn Saul. Why, then, "as one falleth before men of wickedness art thou fallen"? But according to the latter, that he did warn--why was Abner punished? Said R. Na'hman b. Itz'hak: Because he postponed the kingdom of David for two years and a half.
MISHNA III.: And he (the king) declares a war which is not commanded in the Scripture, after consultation with the court of twenty-one judges. He may also establish a way in private property, and nobody has a right to protest against it. The way of a king has no limit. When the military take plunder from the enemy, they must transfer it to the king, and he takes his share first.
GEMARA: Was not this already taught in the first Mishna of this tract: A court of seventy-one judges is needed to decide upon battles which are not commanded, etc.? Because it teaches of other things which belong to the king, this is also repeated. R. Jehudah in the name of Samuel said: All which is written in I Samuel, viii. in that portion relating to a king, the king is allowed to do. Rabh, however, maintains that the whole portion was not said except to warn them. The above Amoraim differ in the same respect as the Tanaim of the following Boraitha: It is written [Deut. xvii. 15]: "Set a king over thee," etc. According to R. Jose, all that is written concerning a king in Samuel, the king is allowed to do. R. Jehudah, however, maintains that the whole portion is written only to frighten them, as the expression, "to set a king over thee," means that the fear of the king shall be always upon you. And thus R. Jehudah used to say: There are three positive commandments which Israel was commanded at the time they entered Palestine, viz.: They shall
appoint a king; they shall destroy the descendants of Amalek; and they shall build a temple. R. N'hurai, however, says: The whole portion was said only because they murmured against Samuel, requesting a king. As it is written [ibid., ibid. 14]: "And thou sayest, I wish to set a king over me," etc.
There is a Boraitha: R. Eliezer said:, The elders of that generation rightly asked Samuel for a king. As it reads [I Sam. viii. 5]: "Appoint for us a king to judge us like all the nations." But the commoners who were among them degraded the case. As it reads [ibid., ibid. 20]: "That we also may ourselves be like all the nations; and that our king may judge us, and go out before us, and fight our battles."
There is another Boraitha: R. Jose said: Three positive commandments Israel was commanded when they entered Palestine, viz.: They shall appoint a king; they shall destroy the descendants of Amalek; and they shall build a temple. But it was not known which was the first. However, from [Ex. xvii. 16], "And he said, Because the Lord hath sworn on his throne that the Lord will have war with Amalek from generation to generation," it is to be inferred that the commandment relating to the king was first, because the word "throne" implies a king. As it is written [I Chron. xxix. 23]: "Then sat Solomon on the throne of the Lord as king." But it was still unknown which should be first, the case of Amalek or the temple. But from [Deut. xii. 10], "He will give you rest from all your enemies . . . and then shall it be that the place," etc., it is to be inferred that the cutting off of the nation of Amalek was to be first. And so was it with David. As it reads [II Sam. vii. 1]: "And it came to pass, when the king dwelt in his house, and the Lord had given him rest," etc., he spake then to Nathan the prophet about the Temple.
The rabbis taught: The treasures of kings which are plundered in time of war belong to the king only; all other plunder, however, half to the king and half to the people. Said Abayi to R. Dimi, according to others to R. Aha: It is correct that the treasures of kings belong to the king, as so it is customary. But from where do we know that other plunder is half to the king, etc.? From [I Chron. xxix. 22]: "And they anointed him unto the Lord as chief ruler, and Zadok as priest." We see, then, that he compares the ruler to Zadok. As in the case of Zadok the high-priest, a half belongs to him and a half to his brother, the same is the case with the ruler. And wherefrom do you
know that in the case of Zadok it is so? From the following Boraitha: Rabbi said: It reads [Lev. xxiv. 9]: "And it shall belong to Aaron and to his sons," meaning half to Aaron and half to his sons.
MISHNA IV.: He (the king) must not marry more than eighteen wives. R. Jehudah, however, maintains: He may marry as many as he likes, provided that they shall not turn his heart away. And R. Simeon maintains: Even one wife, should she be liable to turn his heart away, he must not marry her. And the verse which reads, "Neither shall he take to himself many wives," means even when they were similar to Abigail.
GEMARA: Shall we assume that R. Jehudah takes account of the reason mentioned in the Scriptures and R. Simeon does not? Have we not heard elsewhere just the reverse? A widow must not be pledged, no matter if she be rich or poor. As it is written [Deut. xxiv. 17]: "Thou shalt not take in pledge the raiment of a widow." So is the decree of R. Jehudah. R. Simeon, however, maintains: If she be rich she may be pledged, but when she is poor she must not be pledged. And one is obliged to return the pledge to her. And to the question: How is this to be understood? it was said thus: If you take a pledge from her, you are obliged, biblically, to return it every evening, and by this act she will get a bad name, etc. Hence we see that R. Jehudah does not take account of the reason mentioned in the Scriptures (as there it is written: "You shall return to him; as if not, he will not have whereupon to sleep," which treats only of the poor, and R. Jehudah's theory is that even a rich person must not be pledged)? R. Jehudah does not take account of the reason in all other cases. But here it is different, as the verse itself explains the reason--that "his heart shall not be turned away." And R. Simeon may also say: Do we not take account in all other cases of the reason? Why, then, does the Scripture give the reason here? Let it say, "He shall not marry many wives," and we would understand the reason that it is because of his heart. And as the reason is mentioned, it is for the purpose that even if only one, and she is liable to "turn his heart away," he must not marry her.
The number eighteen mentioned in the Mishna, whence is it deduced? From [II Sam. iii. 2-5]: "And there were born unto David sons in Hebron: And his first-born was Amnon, of Achinoam the Yizreelitess; and his second was Kilab, of Abigayil the wife of Nabal the Carmelite; and the third, Abshalom, the
son of Maachah the daughter of Thalmai the king of Geshur; and the fourth, Adonijah, the son of Chaggith; and the fifth, Shephatyah, the son of Abital; and the sixth, Yithream by Eglah, David's wife. These were born unto David in Hebron." And the prophet said [ibid., ibid. xii. 8]: "And if this be too little, I could bestow on thee yet many more like these." 1
Now let us see! The number of the wives mentioned in the Scriptures is six. "Like this" is six more, "and like this" is again six more, of which the total is eighteen. But was not Michal his wife, who is not mentioned? Said Rabh: Eglah is identical with Michal. And why was she named Eglah? Because he liked her with the liking of a cow for her new-born calf. And so also it reads in judges, xiv. 18: "And he said unto them, If he had not ploughed with my heifer," etc. (from which we see that he names the wife heifer or calf). 2 But had, then, Michal children? Is it not written [II Sam. vi. 23]: "And Michal the daughter of Saul had no child," etc.? Said R. Hisda: She had no children after that time (mentioned in the Scripture), but previous to this she had children. But is it not written [ibid. v. 13]: "And David took yet more concubines and wives out of Jerusalem." (Hence it is to be supposed that he married more than eighteen.) Nay, he married more, to fulfil the number of eighteen. What are wives, and what are concubines? Said R. Jehudah: Wives are married by betrothal and marriage contract; concubines are without both of them.
R. Jehudah in the name of Rabh says: Four hundred children were born to David by the handsome women whom he took captive (i.e., those mentioned in Deut. xxi. 11). All of them had never cut their hair. They were placed in golden carra. And in time of war they were placed with the chief officers of the military, and they were the mighty soldiers in David's army. The same said again in the name of the same authority: Thamar was a daughter of one of the above-mentioned handsome women. As it reads [II Sam. xiii. 13]: "But now, O speak, I pray thee, unto the king; for he will not withhold me from thee." And if she were really his daughter, how could she say that the king would allow a sister to marry her brother? Infer from this that she was one of the children borne by one of the above-mentioned handsome women. It reads [ibid. 3-10]: "But Amnon had a
friend . . . and Yonadab was a very shrewd man." Said R. Jehudah in the name of Rabh: He was shrewd to advise evil. It reads [ibid. 19]: "And Thamar put ashes on her head, and the garment of divers colors which was on her she rent." There is a Boraitha in the name of R. Jehoshua b. Karha: From that which happened to Thamar, a great safeguard was decreed by the sages, as it was said: If it so happened to daughters of kings, so much the more could it happen to daughters of commoners; and if to the chaste, so much the more to the lewd. And therefore said R. Jehudah in the name of Rabh: At that time a decree was made that one must not stay with a married woman alone, nor with a single one. Is that so? Is this not prohibited biblically? As R. Johanan in the name of R. Simeon b. Johozadek said: Where do we find a hint in the Scriptures that one must not stay alone with a married woman? [Deut. xiii. 7]: "If thy brother, the son of thy mother . . . should entice thee." Does, then, only a brother from the mother's side entice, and not a brother from the father's side? It is but to say that only a son may stay alone with his mother, but it is not allowed for anyone besides to stay alone with a married woman. (Hence it is biblical?) Say that at that time it was decreed that one must not stay alone even with a single woman.
It is written [I Kings, i. 5]: "And Adoniyah the son of Chaggith exalted himself, saying, I shall be king." Said R. Jehudah in the name of Rabh: Infer from this that he wanted to place the crown on his head and could not. (Rashi explains this that there was a band of gold in the crown which fitted the descendants of David who had an indentation in their heads which Adoniyah had not.) It is written further: "And he procured himself a chariot and horsemen, and fifty men who ran before him." What is there exceptional in this for a prince? Said R. Jehudah in the name of Rabh: The milt of all of them was taken out (so that it should be easy for them to run), and also the flesh of the soles of their feet was cut off.
MISHNA V.: He (the king) must not acquire many horses--only sufficient for his chariots; and also he must not acquire more gold and silver than to pay the military. He must also write the Holy Scrolls for himself; when he goes to war he must bear them with him; when he enters the city they must be with him, and the same when he sits judging the people; and when he takes his meals they must be placed opposite him. As it is
written [Deut. xvii. 19]: "And it shall be with him, and he shall read therein all the days of his life."
GEMARA: The rabbis taught: He shall not acquire many horses, and lest one say even those which arc needed for his chariots, therefore it is written "for himself," from which it is to be inferred that for the chariots he may; but if so, what, then, is meant by "he shall not acquire many horses"? It means horses which should remain idle. And whence do we deduce that even one horse which is idle is under the negative commandment, "He shall not acquire many horses"? For it is written there [ibid., ibid. 16], "in order to acquire many horses." Is it not said above of even one horse, and it is idle, that he transgresses the commandment, "He shall not acquire many horses"? Why is it written "in order to acquire," etc.? That he should be responsible for the transgressing of the above commandment for each horse which is idle. But how would it be if in the Scripture were not mentioned "for himself"--he would not be allowed even for the chariots? Is this possible? Then, it could be explained, he should have the exact number needed, but not more.
"Much gold and silver," etc. The rabbis taught: It is written: "He shall not acquire much gold and silver"--lest one say not even sufficient for paying the military, therefore it is written "for himself." But how would it be if this were not written--he would not be allowed, even for paying the military. Is that possible? Then, it could be explained that he should have the exact amount, but not more. Now, as we see that from the words "for himself" things are inferred, what do you infer from the same words which are written concerning wives? This excludes commoners, who are allowed to take as many as they please.
R. Jehudah propounded a contradiction in the following verses [I Kings, v. 6]: "And Solomon had forty thousand stalls for the horses for his chariots, and twelve thousand horsemen"; and [II Chron. ix. 25]: "And Solomon had four thousand stalls for horses and chariots, and twelve thousand whom he quartered in the cities for chariots, and near the king at Jerusalem." How is it to be understood? If there were forty thousand stables, every one of them contained four thousand stalls; and if it were only four thousand stables, then each contained forty thousand stalls. R. Itz'hak propounded the following contradiction: It reads [I Kings, x. 21]. "None were of silver; it was not in the
least valued in the days of Solomon"; and [ibid. 27]: "And the king rendered the silver in Jerusalem like stones." (Hence it had some value?) This presents no difficulty. The first verse speaks of before Solomon married the daughter of Pharaoh, and the second after this.
R. Itz'hak said: (Here is repeated from Tract Sabbath, 1st ed., page 109, in the name of R. Jehudah. See paragraph there--same rabbi.)
The same said again: Why does not the Scripture explain the reason of its law? Because in two verses it was so done, and the greatest men of a generation stumbled because of them. They are, "he shall not acquire many wives," for the purpose that they should not "turn his heart away." And King Solomon said: I shall take many wives, and my heart shall not be turned away. However [I Kings, xi. 4]: "And it came to pass . . . that his wives turned away his heart." And the same was the case with the horses, of which he said: I shall acquire many, and shall not return to Egypt. However [ibid. x. 29]: "And a chariot-team came up and went out of Egypt," etc.
"Write the Holy Scrolls." There is a Boraitha: He must not suffice himself with those left by his parents. Rabba said: It is a meritorious act for one to write the Holy Scrolls at his own expense, though they were left to him by his parents. As it is written [Deut. xxxi. 19]: "Now therefore write this song." Abayi objected from our Mishna: "He shall write the Holy Scrolls for himself," and must not suffice himself with those of his parents. And this speaks only of a king, but not of a commoner. Our Mishna treats of two Holy Scrolls, as it is explained in the following Boraitha: It is written [ibid. xvii. 18]: "He shall write for himself a copy of this law," which means that he must write for himself two Holy Scrolls, one which he must bear with him wherever he goes, and one which shall remain in his treasury. The one he has to bear with him he shall write in the form of an amulet, and place it on his arm. However, he must not enter with it a bath or toilet house. As it is written [ibid., ibid. 19]: "And it shall be with him and he shall read," which means it shall be with him in those places where it is allowed to read it, but not in those where it is not.
Mar Zutra, according to others Mar Uqba, said: "Originally the Torah was given to Israel in Hebrew characters and in the Hebrew language; the second time it was given to Israel in Ezra's time, but in Assyrian characters and in the Aramaic
language; finally the Assyrian characters and the Hebrew language were selected for Israel, and the Hebrew characters and the Aramaic language were left to the Hediotim (Idiots). Who are meant by Idiots? Said R. Hisda: The Samaritans. What is meant by Hebrew characters? Said R. Hisda: The Libnuah characters. 1
There is a Boraitha: R. Jose said: Ezra was worthy that the Torah should be given through him, if Moses had not preceded him. Concerning Moses it reads [Ex. xix. 3]: "And Moses went up unto God"; and concerning Ezra it reads [Ezra, vii. 6]: "This Ezra went up." The term "went up" concerning Moses means to receive the Torah, the same being meant by the same expression concerning Ezra. Farther on it is written [Deut. iv. 14]: "And me the Lord commanded at that time to teach you statutes and ordinances." And it is also written [Ezra, vii. 10]: "For Ezra had directed his heart to inquire into the law of the Lord and to do it, and to teach in Israel statutes and ordinances." And although the Torah was not given through him, the characters of it were changed through him. As it is written [ibid. iv. 7]: "And the writing of the letter was written in Aramaic, and interpreted in Aramaic." And it is also written [Dan. v. 8]: "They were not able to read the writing, nor to make its interpretation." (Hence we see that the new characters the Aramaic people could not read.) And why are they named Assyrian? Because they were brought from the country of Assyria.
There is another Boraitha: Rabbi said: In the very beginning the Torah was given to Israel in the Assyrian characters, but after they had sinned it was turned over to them as a dasher. However, after they repented, it was returned to them. As it is written [Zech. ix. 12]: "Return you to the stronghold, ye hopeful prisoners: even to-day do I declare that I will recompense twofold unto thee." And why is it named Assyrian? Because the characters are praised above all other characters. ("Ashur" in Hebrew means "praise.") R. Simeon b. Elazar, however, said in the name of R. Eliezer b. Parta, quoting R. Elazar the Modai, that the characters were not changed at all. As it is written [Ex. xxvii. 10]. 2 And it is also written [Book
of Esther, viii. 9]: "And to the Jews according to their writing, and according to their language." From which it is to be inferred, that as their language was not changed neither was their writing. But if so, what means the term Mishna 1 in the verse in Deuteronomy cited above: "He shall write a copy of this law"--the two copies of the Holy Scrolls which a king has to write, as said above: One for the treasury and one which he must bear attached to his arm. As it is written [Ps. xvi. 8]: "I have always set the Lord before me, that, being at my right hand, I might not be moved." But he who maintains that the writing was not changed at all, what does he infer from the verse just cited? That which was said by R. Hana b. Bizna: He who praises should always think that the Shekinah is opposite him, as the cited verse reads.
MISHNA VI.: One must not ride on his, the king's horse, and also must not seat himself on his chair, and must not make use of his sceptre. And none must be present when he cuts his hair, and not when he is naked, and not when he is in the bathhouse. As it is written: "Thou shalt set a king over thee," which means that his fear shall be always upon thee.
GEMARA: R. Jacob in the name of R. Johanan said: Abishag was allowed to Solomon but not to Adoniyah, because Solomon was a king; and to a king it is allowed to make use of the sceptre of his predecessor, but not to Adoniyah, who was a commoner. How is to be understood that which is written in I Kings, 4: "And she became an attendant on the king"; and to her request that the king should marry her he answered: You are prohibited to me (as I have already eighteen wives). Said R. Shoman b. Aba: Come and see how hard is divorce in the eyes of the sages: So they permitted Abishag to be with David and did not allow him to divorce one of his wives in order to marry her. Said R. Eliezer: He who divorces his first wife, even the altar sheds tears on account of him. As it is written [Mal. ii. 13]: "And this do ye secondly, covering the altar of the Lord with tears, with weeping and with loud complaint, so that he turneth not any more his regard to the offering, nor receiveth it with favor at your hand." And immediately after it reads: "Yet ye say, Wherefore? Because the Lord hath been witness between thee and the wife of thy youth, against whom thou hast indeed dealt treacherously: yet is she thy companion, and the wife of thy covenant."
R. Johanan, according to others R. Elazar, said: Frequently, one's wife dies when her husband owes money and has not to pay. As it is written [Prov. xxii. 27]: "If thou have nothing to pay, why should he take away thy bed from under thee?" The same said again: To him whose first wife dies, it is as if the Temple had been destroyed in his days. As it is written [Ezek. xxiv. 16 and 19]: "I will take away from thee the desire of thy eyes," etc. "And when I had spoken unto the people in the morning, my wife died at evening"; and [ibid. 21]: "I will profane my sanctuary, the pride of your strength, the desire of your eyes." And R. Alexander said: To him whose wife dies, the whole world is dark for him. As it is written [Job, xviii. 6]: "The light becometh dark in his tent, and his lamp will be quenched above him." And R. Jose b. Hanina adds: Also his steps become shortened, as immediately it reads: "His powerful steps will be narrowed." And R. Abuhu adds. Also his advice is no more of use; as the end of the cited verse reads: "and his own counsel will cast him down."
Rabba b. Bahana said in the name of R. Johanan: It is hard for heaven to appoint marriages as it was to divide the sea; as in Ps. lxviii. 7: "God places those who are solitary in the midst of their families: he bringeth out those who are bound unto happiness." 1
R. Samuel b. Na'hman said: For everything there may be an exchange, but for the wife of one's youth. As it is written [Is. liv. 6]: "And as a wife of one's youth that was rejected." R. Jehudah taught to his son R. Itz'hak: One does not find pleasure only in his first wife, as it is written [Prov. v. 19]: "Thy fountain will be blessed; and rejoice with the wife of thy youth." And to the question of his son, Whom do you mean? he answered: E.g., your mother. Is that so? We are aware that the same read before R. Itz'hak his son [Eccl. Vii. 26]: "And I find as more bitter than death the woman whose heart is snares and nets," etc. And to the question of his son, Whom do you mean? he answered. E.g., your mother. True, she was hard to him at the start, but finally she overruled herself and did all he pleased. R. Samuel b. Umaya said in the name of Rabh: A wife is similar to a piece of metal, and does not make any covenant but with him who makes her a vessel. As it is written
[paragraph continues] [Is. liv. 5]: "For thy husband is thy master," etc. There is a Boraitha: One dies but to his wife, and the wife dies but to her husband. The first is deduced from [Ruth, i. 3]: "Thereupon died Elimelech Naomi's husband"; and the second from [Gen. xlviii. 7]: "And as for me, when I came from Padan, Rachel died by me."
"Cuts his hair." The rabbis taught: The king must cut his hair every day. As it is written [Is. xxxiii. 17]: "The king in his beauty shall thy eyes behold." A high-priest every eve of Sabbath, and the commoner priest every thirty days. Why every eve of Sabbath? Said R. Samuel b. Na'hman in the name of R. Johanan: Because the watching priests are relieved every eve of Sabbath. And why for a commoner every thirty days? Because it reads [Ezek. xliv. 20]: "And their heads shall they not shave close, nor suffer their hair to grow long: they shall only crop (the hair of) their heads." And there is an analogy of expression from a Nazarite [Num. vi. 5]. As concerning a Nazarite it is thirty days, the same is the case here. And whence do we know that for a Nazarite it is thirty days? Said R. Mathna: It reads: Holy shall he be. Because the generation of Yihiye counts thirty (a Yod counts ten, a He, five, and in the word yihiye there are two Yods and two Hes). Said R. Papa to Abayi: Why not explain the above-cited verse as that they shall not be allowed to let their hair grow at all? And he answered: If it read: "They shall not let their hair grow," your explanation would be correct; but as it reads "to grow long," it must be explained as the rabbis enact: They shall let it grow thirty days. (Said R. Papa again:) If so, in our time, when there is no temple, it is to equalize the cutting of the hair to the partaking of wine, which was prohibited to the priests only when they had to enter the Temple (as after the case of hair-cutting immediately follows the prohibition of the partaking of wine). Is that so? Have we not learned in a Boraitha: Rabbi said: I say that it is prohibited for the priest to drink Wine at any time whatever. But what can I do, in that the destruction of the Temple was their remedy: as they were forbidden to drink wine in order that they should not enter the Temple while drunk, so, now that the Temple no longer exists, they do not care? Said Abayi: According to whom do the priests drink wine in our time? In accordance with Rabbi's statement.
Rabbi was questioned: How was the hair-cutting of the high-priest,
which it is told was done very artistically? And he answered: Go and see the hair-cutting of Ben Aleshe. And there is a Boraitha: Rabbi said: Not in vain has B. Aleshe expended his money to learn the art of cutting hair: it was only to show how the high-priests used to cut their hair.Footnotes
45:1 How it is deduced from this verse it is impossible to express in any living language. Even in the Hebrew we have to make from the word Rebh--literally. "quarrel"--the word Rab--literally, "great," and to interpret the passage in another fashion altogether. It would therefore be of no use to insert the verse as it is usually translated.
49:1 Leeser translates "brought up," according to the sense. The term in the Bible, however, is the same as in the first part of this verse; therefore the question in the text.
51:1 In the Scripture which is before us there is nothing of the kind. However, we have remarked several times that their text of the Scripture was different from ours. And so also is it remarked in a foot-note in the Wilna edition, 1895.
55:1 The term in Hebrew is "Khohino ve Khohino"--literally, "like this and like this." Hence the analogy in text.
55:2 Eglah is, literally, "a calf."
59:1 For the explanation of this passage see our "Pentateuch: Its Languages and its Characters" (pp. 14, 15). See also there who Utra or Uqba was.
59:2 We have not inserted the verse, as the translation of it does not correspond at all.
60:1 The term "Shana" means "to repeat," and also "change."
61:1 The Talmud takes the last cited words for the exodus from Egypt, and explains: "Do not read the Hebrew term so, but otherwise," which it is impossible to give in the English version.
Commentary on Law, Oral Tradition
BOOK VIII, The Sanhedren, and the Legal Code; Jewish Thought evolution from Moses and Mount Sinai through Years of Jesus, to AD 200;
RULES AND REGULATIONS CONCERNING THE QUALIFICATION OR DISQUALIFICATION OF JUDGES AND WITNESSES WHO MAY DECIDE UPON STRICT LAW AND WHO IN ARBITRATION. WHEN A REJECTION AGAINST JUDGES AND WITNESSES MAY OR MAY NOT TAKE PLACE. OF RELATIVES THAT ARE DISQUALIFIED AND THOSE THAT ARE NOT. HOW THE WITNESSES SHOULD BE EXAMINED IN CIVIL CASES. UNTIL WHAT TIME NEW EVIDENCE MAY OR MAY NOT AFFECT A DECISION RENDERED.
MISHNA I.: Civil cases by three; one party may select one and so the other, and both of them select one more; so is the decree of R. Meir. The sages, however, maintain that the two judges may select the third one. One party may reject the judge of his opponent, according to R. Meir. The sages, however, say: This holds good only when the party brings evidence that the judges selected by his opponent are relatives, or they are unqualified for any other reason. If, however, they were qualified, or they were recognized as judges from a higher court, no rejection is to be considered. The same is the case with the witnesses of each party, according to R. Meir, so that the rejection of each party against the witnesses of its opponent may be taken into consideration. The sages, however, say: Such holds good only in the cases said above concerning the judges, but not otherwise.
GEMARA: How is to be understood the expression of the Mishna: One party selects one, etc.? Does it mean one party may select one court of three judges, and likewise the other; and then both the third court, which would be altogether nine judges? Are, then, three not sufficient? It means, if one party selects one judge its opponent may also do so, and then both may select the third one. And what is the reason of such a selection? It was said in Palestine in the name of R. Zera: Because each party selects its own judge, and both agree in the selection of the third one, the decision will be a just one.
"The sages, however, say," etc. Shall we assume that the point of their difference is what was said by R. Jehudah in the
name of Rabh: Witnesses may not sign a document unless they are aware who will be the others; and so R. Meir does not hold this theory and the rabbis do? Nay! All hold this theory, and the point of their difference is thus: According to R. Meir, the consent of the parties is also needed; but the rabbis hold that the consent of the judges, but not of the parties, is needed.
The text reads: R. Jehudah said in the name of Rabh: Witnesses, etc. There is also a Boraitha: Pure-minded people of Jerusalem used not to sign a document unless they were aware who was the other who was to sign it, and also would not sit down to judge unless they were aware who was to be their colleague, and would also not go to a banquet unless they were aware who were invited to it.
"Each party may reject," etc. Has, then, one the right to reject judges? Said R. Johanan: It speaks of the little courts in Syria, where there were Gentile judges who were not recognized by the higher court. But if they were, no objection could be taken into consideration. But does not the latter part state: "and the sages, however, say . . . recognized by the court"? From which it is to be understood that their opponent R. Meir speaks even of them who were recognized? They mean to say: If not disqualified (on account of kinship or bad conduct) they are to be considered as if they were authorized judges against whom no rejection can take place.
Come and hear: The sages said to R. Mair: One cannot be trusted with any right to protest against a judge who was appointed by the majority? Read: One has no right to reject a judge who was appointed by the majority. And so we have learned in the following Boraitha: One may reject the selected judge of his opponent until he has selected a judge who was recognized by a majority. So is the decree of R. Mair. But are not witnesses considered as recognized judges, and nevertheless R. Mair. said that one party may disqualify the witness of his opponent? Aye! But was it not already said by Resh Lakish: How is it possible that a holy mouth like R. Mair's should say such a thing? Therefore it must be supposed that R. Meir did not say "witnesses," but "his witness" (i.e., a single witness). Let us see! What does he mean by one witness? If concerning a civil case, the law itself disqualifies him; and if concerning an oath, he is trusted by the law as if there were two witnesses. It speaks of a civil case, and the case was that previously the parties accepted him, saying that his testimony would be considered as
if it were testified by two. But, after all, what news did he come to teach us--that he may retract? This we have learned already in the succeeding Mishna, which states that, according to R. Mair, he may retract, to which R. Dimi b. R. Na'hman b. R. Joseph said that the Mishna speaks of when he has accepted his father as a third judge (and because biblically a father is not fit to judge in a case of his son), he may retract even if he has previously accepted him. Why not say the same in our case, because one is not fit for a civil case he may retract although he had previously accepted him? Both cases were needed, as if the case about his father only were stated one might say that because the same is fit to be a judge in other cases, therefore the rabbis maintain that no retraction is to be considered; but in the case of a commoner, who is not fit to be a judge in any case whatsoever, the retraction would hold good, even in accordance with the rabbis. And if the case of a commoner were stated, one might say that only in that case R. Meir permitted to retract. But in the other case he agrees with the rabbis, therefore both are stated.
But how would the expression of the Mishna be understood? It speaks about the judge in the singular (one may reject the judge, etc.), and concerning witnesses, it speaks in the plural (one may reject the witnesses, etc.). Hence we see that the Mishna is particular in its expression. How, then, can you say that R. Mair maintains a single witness? Said R. Elazar: It means that he-one of the parties, and also another one who does not belong to this case--come to reject this witness, as then they are two against one, and therefore the rejection holds good. But, after all, why should one of the parties have a right to reject? Is he not interested in this case, and there is a rule that the testimony of such is not to be taken into consideration. Said R. Aha b. R. Ika: The case was that he laid before the court the reason of his protest, which can be examined.
Let us see what was the reason. If, e.g., robbery, it must not be listened to, as he is interested in this case. Therefore we must say that the reason was the incompetence of his family--e.g., that he or his father was a bondsman, who was not as yet liberated. According to R. Mair, he may be listened to, as his testimony is against the entire family. The rabbis, however, maintain that even then he must not be listened to because of his interest in this case, and the court has not to consider his testimony at all.
When R. Dimi came from Palestine, he said in the name of
[paragraph continues] R. Johanan that the point of their difference is two parties of witnesses, i.e., e.g., the borrower said: "I have two parties of witnesses who will testify to my right," and brought one party of them against which the lender protests. According to R. Mair, the protest holds good because the opponent himself confessed that he had another party. Hence he may bring the other party, against whom no protest would be considered (and his reason is that a proof is needed to each claim, even if it is not so important that it could injure the case); and according to the rabbis, no protest must be listened to even in such a case, as they do not desire a proof to each claim. But when there was only one party of witnesses, all agree that no rejection is considered.
Said R. Ami and R. Assi to R. Johanan: How is it if the other party of witnesses were found to be his relatives, or incompetent to be witnesses for any other reason, should the testimony of the first party be considered, or because of the incompetence of the other party, the first party also loses credit? Said R. Ashi: The testimony of the first party was already accepted, and therefore there is no basis to ignore their testimony because of the incompetence of the other party. Shall we assume that R. Mair and the rabbis differ the same as Rabbi and R. Simeon b. Gamaliel. differ concerning one who claims that he has bought a document and "hazakah" (Last Gate, p. 377), and in the discussion we come to the conclusion that the point of their difference is, if one must prove his words or not? Nay! According to R. Simeon b. Gamaliel, they do not differ at all, and the point of their difference is according to Rabbi's statement there. R. Mair holds with Rabbi. The rabbis, however, maintain that Rabbi does so only in case of the claim of hazakah, which is based upon the document; but in our case, where the testimony of the witnesses is not based upon that of others, even Rabbi admits that no proof is needed.
When Rabbin came from Palestine, he said in the name of R. Johanan that the first part of our Mishna treats of incompetent witnesses but competent judges, and because they reject the witnesses the judges are also rejected; and the latter part speaks of the reverse--that the judges were incompetent and not the witnesses, and the witnesses are rejected because of the judges. Rabha opposed: It would be correct to say that because of the incompetence of the witnesses one may reject the judges, as the case can be brought before other judges. But how can the witnesses be rejected because of the judges? Then the
party would remain without witnesses at all. It speaks of when there was another party of witnesses. But how would it be if there were no other witnesses? Then no rejection is to be considered. Thus Rabbin said the same that R. Dimi said? The theory of "because" is the point of their difference. As to R. Dimi, the theory of because is not to be used at all, while according to Rabbin it is.
The text says: Resh Lakish said: "The holy mouth of R. Mair should say such a thing," etc. Is that so? Did not Ula say that he who saw Resh Lakish in the college saw one uprooting hills and crushing them? (Hence how could he say such a thing, which was objected to?)
Said Rabhina: Was it not said of R. Mair that he who saw him in the college had seen one uprooting mountains and crushing them (and nevertheless he was criticised by Resh Lakish). Therefore he (Ula) meant thus: Come and see how the sages respected each other (though Resh Lakish was such a genius, he nevertheless, in speaking of R. Mair, named him holy mouth). 1
MISHNA II.: If one says, "I accept as a judge in this case your father or my father," or, "I accept certain three pasturers to judge our case," according to R. Mair he may retract thereafter, and according to the sages he must not. If one owes a note to a party, and the latter said to him, "Swear to me by your life, and I will be satisfied," according to R. Mair he may retract, and according to the sages he may not.
GEMARA: Said R. Dimi b. R. Na'hman b. R. Joseph: It speaks of when he has accepted his father as a third judge. Even then he may retract, according to R. Mair. Said R. Jehudah in the name of Samuel: The Tanaim of the Mishna differ in case the creditor said to the debtor: Your or my father may judge this case, and if they should acquit you, I will renounce my claim. But if the debtor said to the creditor: I trust your father, and if they shall hold me liable, I will give you the money--all agree that he may retract. R. Johanan, however,: said that they differ in the latter case.
The schoolmen propounded a question: Does R. Johanan mean to say that they differ only in the latter case, but in the former, "I will renounce my claim," all agree that no retraction is to be considered; or, does he mean to say that they differ in both cases? Come and hear what Rabha, said: They differ only
if he said, "I will satisfy your claim," but in case of "I will renounce my claim," all agree that he cannot retract. Now let us sec! If the question of the schoolmen is to be resolved according to Rabha's decision just mentioned, it is correct, as he is in accordance with R. Johanan; but if the question should be resolved that they differ in case of renouncing, etc., according to whom would be Rabha's opinion? Rabha may differ with both, and declare his own opinion. R. Aha b. Tahlipa objected to Rabha from the latter part of our Mishna's statement, that if he told him to swear by his life, according to R. Mair he may retract, etc. Does not the Mishna speak of one who is to be acquitted with an oath, which is equal to "I renounce my claim"? Nay; it speaks of them who ought to swear and collect, which is equal to "I will give you." But this was stated already in the first part? The Mishna teaches both cases, one in which he is dependent upon himself and one in which he is dependent on the mind of others. And both are needed; as, if there were stated the case when he is dependent upon others e.g., "I trust your father," etc.--one might say that only in such a case R. Mair permits to retract, as he has not as yet made up his mind to pay, thinking that probably he will be acquitted; but when he depends upon himself--e.g., "Swear by your life," etc.--R. Mair also admits that he cannot retract. And if this case only were stated, one might say that in such a case only the rabbis hold that he cannot retract; but in case he depends upon others. they agree with R. Mair. Therefore both are needed.
Resh Lakish said: The Tanaim of the Mishna differ in case the decision was not yet rendered; but after it was, all agree that no retraction can take place. R. Johanan, however, maintains that they differ in the latter case.
The schoolmen propounded a question: Does R. Johanan mean to state that they differ in a case where the decision was rendered, but in case the decision was not as yet rendered all agree that a retraction can take place, or does he mean to say that they differ in both cases? Come and hear what Rabha said: If one has accepted a relative or one who is legally disqualified to be a judge, if before the decision, his retraction holds good; but if after, no retraction is to be considered. Now let us see! If the saying of R. Johanan is to be explained that they differ when the retraction took place after the decision--but if before, all agree that it holds good--Rabbi's decision is correct, as it is in accordance with R. Johanan's explanation and in accordance
with the rabbis. But if it should be explained that they differ also in case it was before the decision, according to whom would be Rabha's decision just mentioned? Infer from this that they differ in the case after the decision but before, all agree that a retraction holds good.
R. Na'hman b. R. Hisda sent a message to R. Na'hman b. to Jacob: Let the master teach us in which case the Tanaim of our Mishna differ--after or before the decision, and with whom the Halakha prevails. And the answer was: After the decision, and the Halakha prevails with the sages. R. Ashi, however, "I said that the question was: Do they differ in case he said, "I will renounce my claim," or in case "I will satisfy your claim"? And the answer was: They differ in the latter case: the Halakha prevails with the sages. So was it taught in the College of Sura. In the College of Pumbeditha, however, it was taught: R. Hanina b. Shlamiha said it was a message from the college, to Samuel: Let the master teach us how is the law if the retraction took place before the decision, but they have made the ceremony of a sudarium? And the answer was that nothing could be changed in such a case.
MISHNA III.: The following are disqualified to be witnesses: Gamblers (habitual dice-players) and usurers, and those who play with flying doves; and the merchants who do business with the growth of the Sabbatic year. Said R Simeon: In the beginning they were named the gatherers of Sabbatic fruit; i.e., even those who had gathered the fruit, not for business, were disqualified. However, since the demand of the government to pay duties increased, the gatherers of the Sabbatic fruit were absolved from the disqualification, and only those who did business with same were disqualified. Said R. Jehudah: Then the merchants and all the other persons named above were disqualified only when they had no other business or trade than this; but if they had, they were qualified.
GEMARA: What crime is there in dice-playing? Said Rami b. Hama: Because it is only an asmachtha, which does not give title. R. Shesheth, however, maintains that such is not to be considered an asmachtha; but they are disqualified because they do not occupy themselves with the welfare of the world--and the difference between them is if they had another business besides. As we have learned in our Mishna, according to R. Jehudah, if they have some business besides, they are qualified. Hence we see that the reason of the disqualification is because they do not occupy
themselves with the welfare of the world--and this contradicts Rami b. Hama's above statement? And lest one say that R. Jehudah's opinion is only of an individual, as the rabbis differ with him, this is not so, as Jehoshua b. Levi said that in every place where R. Jehudah says "this is only," or if he says "provided," he comes only to explain the meaning of the sages, but not to differ with them; and R. Johanan maintains that when he says "this is only," he comes to explain, but when he says "provided," he means to differ. And as in our Mishna he expresses himself "this is only," all agree that he is only explaining.
Hence Rami is contradicted? Do you contradict one man with another man? Each of them may have his opinion. Rami holds that they do differ, and Shesheth that they do not.
Have we not learned in the following Boraitha that it does not matter if he has another business besides; he is nevertheless disqualified? The Boraitha is in accordance with R. Jehudah in the name of Tarphon of the following Boraitha: R. Jehudah said in the name of R. Tarphon, concerning a Nazarite (Tract Nazir, 34a), that wherever there is any doubt he is not deemed a Nazarite. And the same is in our case, as the gambler is not certain that he will win or lose, it cannot be considered a real business, but robbery, and therefore he is disqualified even when he has another business.
"Usurers." Said Rabha: One who borrows to pay usury is also disqualified. But does not our Mishna state "usurers," which means the lenders, and not the borrowers? It means to say a loan which is usurious. There were two witnesses who testified against Bar Benetus. One said: In my presence he has given money at usury; and the other said.. He has loaned to me at usury. And Rabha disqualified b. Benetus from being a witness. But how could Rabha take into consideration the testimony of him who said: I have borrowed from him at usury? Did not Rabha say that the borrower also is disqualified, because, as soon as he has borrowed at usury, he is wicked; and the Torah says: Thou shalt not bring a sinner as a witness. Rabha is in accordance with his theory elsewhere, that one is not trusted to make himself wicked. (Hence his testimony that he himself has bor. rowed at usury is not taken into consideration, but that part, that Benetus has loaned to him at usury, was.) There was a slaughterer who sold illegal meat in his business, and R. Na'hman disqualified him . And he let his hair and nails grow as a sign of repentance; and Na'hman was about to remove the
disqualification. Said Rabha to him: Perhaps he is deceiving you. But what remedy can he have? As R. Aidi b. Abin said elsewhere: For him who is suspected of selling illegal meat there is no remedy, unless he goes to a place where he is not known and returns a valuable lost thing, or he recognizes the illegality of meat in his business, even if it is of great value.
"Flying doves," etc. What does this mean? In this college it was explained: If your dove should fly farther than mine (such and such a distance), you shall take an amount of money. And Hama b. Oushia said that it means an ἀρυω, one who uses his doves to entice to his cot doves belonging to other cots--and this is robbery. But to him who maintains, "If your dove shall fly farther," etc., is this not gambling? (Why, then, is it repeated?) The Mishna teaches both cases--depending upon himself and depending upon his dove; as if depending upon himself only were stated, one might say that, because he was sure he would win, he offered such an amount, and be has not made up his mind to pay the sum willingly in case of a loss, and therefore it is considered an asmachtha, which does not give title. But in the other case, where he is dependent upon his dove, in which he is not sure, and has nevertheless offered a sum of money, it is to be supposed that he made up his mind to pay willingly in any event, and therefore it is not considered an asmachtha. And if this latter case were stated, one might say that he did so probably because the winning of the race depends on the clapping, and he knew better how to clap (at the pigeon race); but when he depends upon himself, it is different. Therefore both are stated.
An objection was raised from the following: Gamblers are counted those who play with dice; and not only dice, but even with the shells of nuts or pomegranates. And when is their repentance to be considered? When they break the dice and renounce this play entirely, so that they do not play even for nothing. And usurers are counted both the lender and the borrower, and their repentance is to be considered only then when they destroy their documents and renounce this business entirely, so that they do not take usury even from a heathen, from whom it is biblically allowed. And among those who play with doves, those who train doves to fly farther are counted; and not only doves, but even other animals; and their renunciation is considered only when they destroy their snares and renounce the business entirely, so that they do not catch birds even in
deserts. Among those who handle Sabbatic fruits are counted those who buy or sell, and their renunciation is considered only when they cease to do so in the next Sabbatic year. Said R. Na'hamia: It is not sufficient that they cease to do so, but they must return the money which they derived from the sale of the fruit. How if one say: I, so and so, have obtained two hundred zuz from the Sabbatic fruit, and I present them for charity? We see, then, that among those who play with doves, those who do so with other animals are also counted; and this can be correct only according to him who explains our Mishna: "If your dove should fly farther than mine," as the same can be done with other animals. But to him who says an ἀρυω, could this be done with other animals? Aye, this can be done with a wild ox; and it is in accordance with him who says that a wild ox may be counted among domesticated animals.
There is a Boraitha: There was added to the disqualified witnesses robbers and forcers (i.e., those who take things by force, although they pay the value for them). But is not a robber disqualified to be a witness biblically? It means even those who do not return a found thing which was lost by a deaf-mute or by minors (which according to the strict law is not to be returned, but it was enacted that it should be returned for the sake of peace--that there should be no quarrel with their relatives), and as this does not occur frequently, they were not counted among the disqualified. Thereafter, however, they were added, as, after all, they take possession of money which does not belong to them. And the same is the case with the forcers, who were not placed among the disqualified, because this does not happen frequently. Thereafter, however, as the rabbis saw that it became a habit, they added them also.
There is another Boraitha: There was secondly added to that category, pasturers, collectors of duty, and contractors of the government. Pasturers were not put in this category previously, because, when it was seen that they led their animals into strange pastures, it was only occasionally; but later, when it was seen that they did it intentionally, they were also added. And the same is the case with the collectors of duty and the contractors, as at first it was thought that they took only what belonged to them; but after investigation, when it was found that they took much more than they ought, they were added. Said Rabha: The pasturer in question--it matters not if he is a pasturer of small cattle or of large ones. Did Rabha indeed say so? Did
he not say that a pasturer of small cattle is disqualified only in Palestine, but not outside of it, and pasturers of large cattle even in Palestine are qualified? This was taught of them who raise the cattle for themselves; and if they are small cattle, they are disqualified because it was forbidden to keep small cattle in Palestine, as explained elsewhere. And so it seems to be as the previous Mishna expresses, "three pasturers," and it is to be assumed for witnesses. Nay; it means for judges, and this is to be understood from the number three. As if for witnesses, for what purpose are three needed? But if for judges, why does the Mishna express itself "pasturers"--let it state three laymen who do not know the law? It means to say that even pasturers who spend their time in uninhabited places are nevertheless qualified to judge of the appointment of the parties.
R. Jehudah said: A pasturer of whom it is not heard that he leads his cattle into strange pasture is nevertheless disqualified, but a duty collector of whom it is not said that he takes more than he ought, is qualified.
The father of R. Zera was a collector for thirteen years, and when the governor would come to that city he used to say to the scholars: Go and hide yourselves in the houses, so that the governor shall not see so many people, or he will demand from the city more taxes. And also to the other people, when he saw them crowded in the streets, he used to say: The governor is coming, and he will kill the father in presence of the son, and the son in presence of his father. And they also used to hide themselves. And when the governor came, he used to say to him: You see that there are very few people in this city. From whom, then, shall we collect so much duty? When he departed, he said: There are thirteen maes which are tied in the sheet of my bed; take and return them to so and so, as I took it from him for duty and did not use it.
"They were named gatherers of Sabbatic fruit," etc. What does this mean? Said R. Jehudah thus: Formerly it was said the gatherers of the fruit were qualified, but the merchants were not. But when it was seen that they used to pay the poor that they should gather the fruit for them and bring it to their houses, it was enacted that the gatherers as well as the merchants were disqualified. This explanation, however, was a difficulty to the scholars of the city of Rehaba as to the expression of our Mishna, "since the demand of the government," and according to this explanation it ought to be, "since the increase of buyers,"
and therefore they explain thus: Since the government has increased their duties [as R. Jani announced, "Go and sow in the Sabbatic year, because of the duties"], it was enacted that the gatherers were qualified, but not the merchants.
Hyie b. Zarssuqi and Simeon b. Jehuzdack went to intercalate a year in Essia, and Resh Lakish met them and said: I will go with them to see how they practise. In the meantime he saw a man who was ploughing in the Sabbatic year, and he said to them: Is this man a priest, who is suspected of doing work in the Sabbatic year? And they answered: Probably he is hired by a Gentile to do so. He saw again a man who was collecting the fluid in a vineyard and putting it back into the bale. And he said again: Is this man a priest, who is suspected, etc.? And they answered: He who trims vines in the Sabbatic year may say: I need the twigs to make a bale for the press. Rejoined Resh Lakish: The heart knows whether it is done for "ekel" (a legitimate purpose) or out of "akalkaloth" (perverseness). And they rejoined: He is a rebel. When they came to their place, they ascended to the attic and moved the steps that he (Resh Lakish) should not ascend with them. The latter then came to R. Johanan and questioned him: Men who are suspected of transgressing the Sabbatic year, are they fit to establish a leap year? After deliberating, however, he said: It presents no difficulty to me, as they may be compared with the three pasturers mentioned above (p. 46), and the rabbis recommended them to do so, as so it should be according to their reckoning.
Afterward, however, he said to himself: There is no similarity, as, concerning the three pasturers mentioned thereafter, the rabbis selected the right number needed for intercalation. Here, however, they themselves did it, and they are only a society of wicked men who are not at all qualified to intercalate. Said R. Johanan: I am distressed that you called them wicked. When the above-mentioned rabbis came to R. Johanan, complaining that Resh Lakish called them pasturers of cattle in the presence of R. Johanan and he kept silent, he answered: If he were to call you pasturers of sheep, what could I do to him?
1Ula said: One's thought for his maintenance injures him in his study of the law (i.e., because of his sorrow it remains not in his mind for a long time, and he forgets it easily). As it is written [Job, V., 12]: "Who frustrateth the plans of the crafty, so that
their hands cannot execute their well-devised counsel." Said Rabba, however: If he occupies himself with the Torah for the sake of Heaven, he is not injured. As it is written [Prov. xix. 21]: "There are many thoughts in a man's heart; but the counsel of the Lord alone will stand firm"--which is to be explained: A study which is for the sake of Heaven, no matter in what circumstances one is, it remains forever. 1
"Only then," etc. Said R. Abuhu in the name of R. Elazar: The Halakha prevails with R. Jehudah. And the same said again in the name of the same authority: All the persons mentioned in the Mishna and in the Boraithas are disqualified only then when their crime was announced by the court. However, concerning a pasturer, R. Aha and Rabhina differ. According to one, even concerning him announcement is needed; and according to the other, no announcement is needed for his disqualification. (Says the Gemara:) It is correct, according to him who holds that no announcement is needed, that which R. Jehudah said above, that a pasturer is disqualified even if we are not aware of any crime; but according to him who holds that even a pasturer must be announced, why, then, Jehudah's decision? Because he holds that the court has to announce of each pasturer, no matter what he is, that he is disqualified. There was a document for a gift which was signed by two robbers, and R. Papa b. Samuel was about to make it valid because they were not announced by the court. Said Rabha to him: When to a robbery which is only rabbinical an announcement is needed, should we say that the same is needed to a biblical robbery
R. Na'hman said: They who accept charity from idolaters are disqualified to be witnesses, provided they do so publicly, but not if privately; and even publicly, they are disqualified only then when it was possible for them to do same privately and they do not care to disgrace themselves publicly; but if not, one is not disqualified, as he is compelled to get a living. The same said again: He who is suspected of adultery is qualified to be a witness. Said R. Shesheth to him: Master, answer me. Should a man who has forty stripes on his shoulders 2 be qualified?
[paragraph continues] Said Rabha: R. Na'hman admits that concerning a woman he is disqualified to be a witness. And Rabhina, according to others R. Papa, said: This is said only concerning a divorce, but concerning bringing her into the house of her husband, the suspicion does not matter. R. Na'hman said again: If one has stolen in the month of Nissan at the harvest-time, and has stolen again in the month of Tishri, he is not named a thief so that he should be disqualified, provided he was a gardener and stole a thing of little value, and if it was a thing which could be consumed without any preparation. The gardener of R. Zebid stole a kab of barley, and R. Zebid disqualified him. And also another one stole a bunch of dates, and was also disqualified.
There were undertakers who had buried a corpse on the first day of Pentecost, and R. Papa put them under the ban and disqualified them to be witnesses. However, Huna b. R. Jehoshua qualified them, and to the question of R. Papa: Are they not wicked? he answered: They thought they were doing a meritorious act. But were they not put under the ban for this transgression, and nevertheless did it again? They thought that the putting under the ban was only a kind of atonement imposed by the rabbis for violating the holiday. However, the burial act itself is meritorious, though they will have to be under the ban for a few days for violation of a holiday.
An apostate who eats illegal meat, which is identical with carcasses, because it is cheaper, all agree that he is disqualified. But if he does this not because it is cheaper, but for the purpose of angering his former brothers in faith, 1 according to Abayi he is disqualified and according to Rabha he is not. The reason of Abayi is because he is wicked, and the Scripture reads plainly: "Thou shalt not bring a sinner as a witness." Rabha's reason, however, is that it speaks of one wicked in money matters only. An objection was raised from the following: "The meaning of the Scripture concerning the testimony of a sinner means one who is wicked in money matters; as, for instance, robbers and perjurers. No matter if the oath was a vain one (e.g., if one has sworn that a stone is a stone), or if the oath was a false one concerning money matters." Hence we see that even a vain swearer
is also disqualified? By the expression "vain swearer" is not meant as explained, but that he has sworn in vain concerning money matters--e.g., A owes money to B, which was not necessary at all, as A has never denied it. An objection was raised from the following: "Thou shalt not bring a sinner as a witness," means one wicked in robbery--namely, robbers and usurers. Hence this Boraitha contradicts Abayi's statement. The objection remains.
Shall we assume that the above Amoraim differ in the same respect as the Tanaim of the following: A collusive witness is disqualified in all law cases. So is the decree of R. Mair. R. Jose, however, maintains: Provided he was made collusive in a case of capital punishment; but if in money matters, he is still qualified to be a witness in criminal cases? Now, shall we say that Abayi holds with R. Mair, who maintains that even from a lenient we disqualify to a rigorous one, and Rabha holds with R. Jose, who maintains that only from a rigorous case we disqualify, even to a lenient one, but from lenient to rigorous we do not? Nay! In accordance with R. Jose's theory, they do not differ. But the point of their difference is concerning R. Mair's theory, as Abayi holds with him, and Rabha maintains that even R. Mair said so only concerning a collusive witness in money matters, which is both wicked against man and wicked against heaven; but in our case, where the wickedness is in heavenly things only, even R. Mair admits that he is qualified to be a witness in money matters. The Halakha, however, prevails with Abayi. But was he not objected to? The Boraitha which contradicts Abayi is in accordance with R. Jose. But even then, is it not a rule, when R. Mair differs with R. Jose, that the Halakha. prevails with the latter? In this case it was different, as the editor of the Mishnayoth taught an anonymous Mishna in accordance with R. Mair's opinion. And where is it? This was, explained in the following case: Bar Hama had slain a man and the Exilarch told Aba b. Jacob to investigate the case; and if he really slew the man, they should make the murderer blind. (Since the Temple was destroyed, capital punishments were abolished by Israel, and therefore to make a man blind was to make him dead to the world.) And two witnesses came to testify that he surely killed the man. The defendant, however, brought two witnesses who testified against one of the witnesses. One of them said: In my presence this man stole a kab of barley; and the other said: In my presence he stole the handle of a borer.
[paragraph continues] And the Exilarch said to him: You wish to disqualify this man to be a witness because of R. Mair's theory, but I know of the rule that the Halakha prevails with R. Jose when he differs with R. Mair; and according to R. Jose, if one was collusive in money matters, he is still qualified in criminal cases. Said R. Papa to him: This is so in other cases; but in this case it is different, as there is an anonymous Mishna in accordance with R. Mair. But which Mishna is it? Shall we assume it to be that which stated that he who is competent to judge criminal cases is competent for civil cases also, which cannot be in accordance with R. Jose, as, according to his theory, there is a witness who was made collusive in civil cases and is still competent in criminal cases? Hence it is in accordance with R. Mair. But perhaps the cited Mishna does not speak about collusive witnesses, but of such as are incompetent to be witnesses because of their family. Therefore we must say that he means our Mishna which states the following are disqualified for witnesses: Players with dice, etc.; and a Boraitha adds: And also slaves. This is the rule in all cases in which women are not allowed to be witnesses--they also are disqualified. And this cannot be in accordance with R. Jose, as he holds that they are qualified to be witnesses in criminal cases, for which women are disqualified. Hence it is in accordance with R. Mair. B. Hama then arose and kissed him, and freed him from paying duties all his life.
MISHNA IV.: The following are counted relatives who may not be witnesses: Brothers, brothers of father or mother, brothers-in-law, uncles by marriage from father's or mother's side, a stepfather, a father-in-law, the husband of one's wife's sister, they and their sons and their sons-in-law, and also a stepson himself--but the latter's children are qualified. Said R. Jose: This Mishna was changed by R. Aqiba. The ancient Mishna, however, was thus: One's uncle, one's first-cousin, and all those who are competent to be one's heirs and also all one's relatives at that time; but if they were relatives and thereafter became estranged, they are qualified. R. Jehudah, however, maintains that even if a daughter dies and leaves children, her husband is still considered a relative. An intimate friend, as well as a pronounced enemy, is also disqualified. Who is considered an intimate friend? The groomsman. And who is considered a pronounced enemy? The one who has not spoken to him for three days because of animosity. And the sages answered R. Jehudah: The children of Israel are not suspected of witnessing falsely because of animosity.
GEMARA: Whence is this deduced? From that which the rabbis taught. It is written [Deut. xxiv. 16]: "Fathers shall not be put to death for the children . . . for his own sin," etc. To what end is this written? If only to teach the meaning of it literally, it would not be necessary, as the end of the verse reads, "for his own sin shall every man be put to death." It must therefore be interpreted, fathers should not die by the witnessing of their children, and vice versa. From this is deduced fathers by sons, and vice versa; and so much the more fathers who are brothers are incompetent to' testify for each other. But whence do we know that grandsons (cousins) are also incompetent to testify for each other? It should read, "parents shall not die because of their son." And why "sons" in the plural? To teach that their sons are not competent to testify for each other. But whence do we know that two relatives are not qualified to testify in one case even for a stranger? It should read in the singular, "and a son for his parents." And why in the plural, "and sons"? To teach that two sons are incompetent to testify in one case, even for a stranger. But from this is deduced the relatives from the. father's side only. Whence, however, do we know that the same is the case with the relatives from the mother's side? From the repetition of the word "fathers" in the same verse. And as it was not necessary for the relatives on the father's side, apply it to the relatives on the mother's side. But this verse speaks of accusation. Whence do we know that the same is the case concerning advantage? From the repetition of the words, "shall not die," which were not necessary in the case of accusation. Apply it, therefore, to cases of advantage. All this, however, is said concerning criminal cases. But whence do we know that it is the same with civil cases? Hence it reads [Lev. xxiv. 22]: "One manner of judicial law," etc., meaning that all cases must be judged equally.
Rabh said: My father's brother shall not witness in my cases; he, his son, and his son-in-law. And similarly, I, for my part, will not witness in his cases, neither my son nor my son-in-law. But why? Is not one's son a grandnephew, who is a third to a father's brother, and our Mishna teaches that only a cousin is not competent, who is second to the party, but not a second-cousin, who is third to the party? The expression in our Mishna, "his son-in-law," means the son-in-law of his son, who is already a third. But if so, why does it not teach "the son of his son" (grandson)? Incidentally, the Mishna teaches us that the husband
is equal to his wife. But if so, according to whom would be the following Boraitha, taught by R. Hyya: Eight fathers, which counts twenty-four, including their sons and sons-in-law (i.e., father and brother, two grandfathers, and four great-grand fathers--two from each side--and eight sons and eight sons-in-law)? And if our Mishna means the son's son-in-law, then it ought to be thirty-two, viz.: eight fathers, eight sons, eight sons-in-law, and eight grandsons. Therefore we must say that our Mishna means his son-in-law. And why does Rabh name him the son-in-law of his son? Because he is not a descendant from him, but came from strangers, he is considered not of the second generation but as of the third. But, after all, according to Rabh's saying it is a third to a second-cousin, and we are aware that Rabh holds that such is qualified to be a witness? Therefore we must say that Rabh holds with R. Elazar, who says in the following Boraitha: Even as my father's brother cannot be a witness for me, neither his son nor his son-in-law, the same is the case with the son of my father's brother and with his son and son-in-law. Still, this cannot serve as an answer to the objection that Rabh himself has qualified a third to a second-cousin? Say, Rabh holds with R. Elazar only concerning his son, but differs with him concerning the son of his father's brother. And the reason of Rabh's theory is because it reads: "Fathers shall not die because of their sons; and sons," etc.--which means the addition of one more generation. And the reason of R. Elazar is: "For their children" means that the incompetence of the fathers shall extend to their children also.
R. Na'hman said: The brother of my mother-in-law cannot be a witness for me, and the same is the case with his son, and also with the son of the sister of my mother-in-law. And there is also a Boraitha similar to this, viz.: The husband of one's sister, also the husband of the sister of one's father And the husband of the sister of one's mother, their sons and their sons-in-law, are also excluded from being witnesses. Said R. Ashi: While we were with Ula we questioned him: How is it concerning the brother of one's father-in-law and his son, and also concerning the son of the sister of his father-in-law? And he answered: This we have learned in a Boraitha: One's brothers, the brother of one's father and of one's mother, they, their sons and their sons-in-law--all are incompetent.
It happened that Rabh was going to buy parchments, and he was questioned: May one be a witness to his stepson's wife? The
answer to this question was, according to the College of Sura, that the husband is the same as his wife; and according to the College of Pumbeditha, the answer was that the wife is the same as her husband--which means that he is considered as if he were really her father-in-law. And as Huna in the name of Rabh said: Whence do we know that the woman is considered to be the same, as her husband? From [Lev. xviii. 14]: "She is thy aunt." Is she indeed his aunt? Is she not the wife of his uncle only? We see, then, that the wife is considered the same as her husband.
"A stepfather . . . his son and son-in-law." Is not his son a brother of the: party from the mother's side? Said R. Jeremiah: It means the brother of his brother--e.g., the son of his stepfather from another wife. R. Hisda, however, qualified such ~ a person. When he was questioned: Was he not aware of Jeremiah's explanation of our Mishna just mentioned? He answered I do not care for it. But if so, it is his brother. The Mishna teaches concerning a brother from the father's side, and also from the mother's side. R. Hisda said the father of the groom and the father of the bride may be witnesses for each other, as their relation is similar to the relation of a cork to a barrel only, which cannot be counted relationship. Rabba b. b. Hana said: One may be a witness for his betrothed, but not for his wife. Said Rabhina: Provided he testified against her; but if his testimony is in her behalf, he is not trusted. In reality, however, (says the Gemara,) there is no difference: One is not trusted in any case, as the reason concerning witnesses is that one is too near in mind to his relatives; and as she is betrothed to him, he is not fit to be a witness in any case.
The rabbis taught: One's stepson only. R. Jose says: The husband of one's wife's sister only. And there is another Boraitha: The husband of one's wife's sister only. R. Jehudah says: One's stepson only. How is this to be understood? Shall we assume that the Tana of the first Boraitha has mentioned only the stepfather, but that the case is the same with the husband of one's wife's sister? And R. Jose with his statement also does not mean to differ, but he mentioned the latter, and the same is it also with the former. Then our Mishna, which states, "the husband of one's wife's sister, he, his son, and his son-in-law are excluded, would be neither in accordance with R. Jedudah nor with R. Jose. "Or does the Boraitha mean to say that regarding a stepfather only is he excluded, but concerning the husband of the wife's sister, he, with his sons, etc., is excluded; and R. Jose differs, as, according
to his opinion, the latter only is excluded, but not his sons, etc.; but a stepfather, with his sons, etc., is excluded? Then the Boraitha of R. Hyya, mentioned above, which states that there are twenty-four, would be neither in accord with R. Jose nor with R. Jehudah. Therefore we must say that the Boraitha is to be explained thus: The stepfather only is to be excluded, but concerning the husband of his wife's sister, his children are also excluded. And R. Jose came to teach that even concerning the latter he only is excluded, but not his children, and so much the more a stepfather. And then our Mishna is in accordance with R. Jehudah and the Boraitha in accordance with R. Jose. Said R. Jehudah in the name of Samuel: The Halakha prevails with R. Jose.
There was a deed of gift which was signed by two brothers-in law--i.e., two husbands of two sisters--and R. Joseph was about to make it valid, based upon the decision of Samuel that the Halakha prevails with R. Jose. Said Abayi to him: Whence do you know that Samuel meant R. Jose of our Mishna, who qualified the husband of one's wife's sister? Perhaps he meant R. Jose of the Boraitha who disqualified him. This could not be supposed, as Samuel said, e.g., I and Pinchas, who are brothers and brothers-in-law--but if only brothers-in-law, they are qualified. And Abayi rejoined: It is still uncertain, as perhaps Samuel meant to say: Because Pinchas was the husband of his wife's sister. Therefore said R. Joseph to the beneficiary: Acquire title to this gift by the testimony of the witnesses who were present when the gift was transferred to you, in accordance with R. Aba's decision. Said Abayi again: But did not Aba admit that if there was a forgery in the deed while writing, it is invalid even in the latter case? And R. Joseph said to the beneficiary: Go! you see people do not allow me to transfer it to you.
"R. Jehudah said," etc. Said Thn'hum in the name of Tabla in the name of Bruna, quoting Rabha: The Halakha prevails with R. Jehudah. Rabha, however, in the name of R. Na'hman, and also Rabba b. b. Hana in the name of R. Johanan, said: The Halakha does not prevail with him: There were some others who taught the saying of Rabba with regard to the following: Thus lectured R. Jose the Galilean: It is written [Deut. xvii. 9]: "And to the judge that may be in those days." Was it necessary to state thus? Can it then be supposed that one should go to a judge that is not in his days? Therefore it is to be explained that it means that the judge was previously a relative of
his, and that thereafter he became estranged. And to this said Rabba, etc., the Halakha prevails with R. Jose the Galilean.
The sons of Mar Uqba's father-in-law were relatives, and became thereafter estranged. And they had a case, and came, with it to his court. He, however, exclaimed: I am disqualified from being your judge. They then rejoined: Is it because you hold with R. Jehudah? We will bring you a letter from Palestine stating that the Halakha does not prevail with him. Rejoined he: I myself know that I am not attached to you with wax, and my saying that I am disqualified to judge you is because I know that your custom is not to listen to my decision.
"A friend is a groomsman." But how long shall this friendship hold? R. Aba in the name of R. Jeremiah, quoting Rabh, said: All the seven days of the wedding. The rabbis, however, in the name of Rabha said that after the first day the friendship is no longer considered, and he is qualified.
"An enemy," etc. The rabbis taught: It reads [Num. xxxv. 23]: "He was not his enemy and did not seek his harm"--which means, he who is not one's enemy may be a witness and he who does not seek one's harm may be his judge. This is concerning an enemy. And whence do we know that the same is the case with a friend? Read, then, "and he is not his enemy and not his friend"--and then he may be a witness; and if he does not seek his harm and not his welfare, then he may be his judge. But is it, then, written a friend? This is common sense. Why not an enemy? Because his mind is far from doing any good to him; and the same is it with a friend, whose mind is near to do all that he can in his behalf. The rabbis, however, infer from this two things: one concerning a judge and the other that which we have learned in the following Boraitha: R. Jose b. R. Jehudah said: From the verse, "he is not his enemy and does not seek his harm," is to be inferred that if two scholars have animosity toward each other they must not judge in a case together.
MISHNA V.: How were the witnesses examined? They, were brought into separate chambers and were frightened to tell the truth. And then all except the eldest were told to go out, and he questioned: How do you know that A owes money to B?, And if his answer was: "Because A himself told me that he owes,. him," or, "C told me that such was the case," he said nothing, unless he testified that, in the presence of myself and my colleague, A confessed that he owed to B two hundred zuz: and then the second witness is brought in and they examine him, and if both
testimonies correspond the court discusses about the case. If two of the judges acquit and one makes him liable, he is acquitted; and if vice versa, he is liable. If, however, one acquits and the other makes him liable, and the third one says, "I don't know," then judges must be added. And the same is the case if there were five, and two of them were against two, while the fifth was doubtful. After the conclusion of the judges is arrived at, they are told to enter, and the eldest of the judges announces, "You, R, are acquitted," or, "You, A, are liable." And whence do we know that one of the judges must not say: I was in favor of the defendant, but my colleagues were against, and I could not help it, as they were the majority. As to this it reads [Lev. xix. 16]: "Thou shalt not go up and down as a talebearer among thy people"; and it reads also [Prov. xi. 131 He that walketh about as a talebearer revealeth secrets."
GEMARA: How were the witnesses frightened? Said R. Jehudah. Thus [ibid. xxv. 14]: "Like clouds and wind without rain, so is a man that vaunteth falsely of a gift" (i.e., that because of false witnesses, even though it is cloudy, the rain is withheld), Said Rabha: This is no frightening, as they may think what people say, even seven years of famine do not pass the gate of a specialist. "Therefore," said he, "it was said to them [ibid., ibid. 18]: 'A battle-axe, and a sword, and a sharpened arrow is a man that testifieth as a false witness against his neighbor.'" And R. Ashi maintains that even this is not sufficient, as they may think, even in time of a pest one does not die before his time. Therefore said he: I was told by Nathan b. Mar Zutra that they were frightened that false witnesses were disgraced even in the eyes of those who hired them. As it reads [I Kings, xxi. 10]: "And set two men, sons of Belial, opposite to him, and let them bear false witness against him," etc.
"'A' himself told me," etc. This is a support to R. Jehudah, who said in the name of Rabh: If one wants the case to be recognized by the court, he must insist that the debtor shall say: Ye shall be my witnesses. And so also was taught by Hyya b. Aba in the name of R. Johanan. And there is also a Boraitha as follows: (A said to B:)"I have a mana with you," and he answered, "Yea." On the morrow A asked him, "Give it to me," and B said it was only a joke, he is free. And not this only, but even if A has had two witnesses hidden under a fence (so that B could not see them), and questioned him: "Have I a mana with you?" and B answered, "Yea." And to the question, p. 86 "Would you like to confess before witnesses?" B answers, "I am afraid, if I do so, you will summon me to the court"; and on the morrow A asks B to give him the mana, and his answer is, "It was only a joke," he is not liable. However, one must not defend a seducer. A seducer! Who has mentioned this term? The Boraitha is not complete, and should read thus: If, however, B does not defend himself, the court must not question him; perhaps it was a joke. But in criminal cases, a similar question must be asked by the court, although he has not so defended himself, except in the case of a seducer. And why? Said R. Hama b. Hanina: From the lecture of R. Hyya b. Aba I understand that it is because it reads [Deut. xiii. 9]: "Nor shall thy eye look with pity on him, nor shalt thou conceal it for him."
Said Abayi: All that is said above is, provided the defendant claims, "It was a joke"; but if he claims, "I have never confessed," he must be considered a liar and is liable. R. Papa b R. Aha b. Ada, however, maintains: In the case of a joke, people do not remember their confession, and therefore even such a claim must be investigated.
There was one who had hidden witnesses under the curtains of his bed, and he said to his debtor, "Have I a mana with you?" and he answered, "Yea." And he questioned him again, "May the people who are here sleeping or awake be witnesses?" and he answered, "No." And when the case came before R. Kahana, he said: He cannot be liable, as he said no. A similar case happened with one who had hidden witnesses in a grave, and to the question, "May the living and the dead be witnesses?" he answered, "No." And when the case came before Resh Lakish, he acquitted him. Rabhina, according to others R. Papi, said: The decision of R. Jehudah that it must be said by the party, "Ye are my witnesses," is no matter whether it is said by the lender in the presence of the borrower and he keeps silent, or by the debtor himself. And this is inferred from that which was said above, that the debtor had answered the question with no; but if he should remain silent, he would be liable. There was one who was named by the people "the man who has against him a whole kab of promissory notes." And when he heard this, he exclaimed: Do I owe to anyone but B and C? The latter then summoned him before the court of R. Na'hman, and R. Na'hman decided that the above exclamation could not be taken as evidence, as it might be that he said so for the purpose that people should not think him too rich. There was another one who was
named "the mouse who lies on dinars," and at the time he was dying he said: A and B are my creditors. After his death the creditors summoned his heirs before R. Ismael b. R. Jose, and he made the heirs pay, for the reason that, if he said so while in good health, it might be supposed that he did so for the purpose mentioned above, but this could not apply to a man who was dying. The heirs, however, only paid the half, and were summoned for the other half in the court of R. Hyya, who decided, as it is supposed that one may say so for the purpose that he shall not appear too rich, so it may be said that the deceased did so that his children should not appear too rich. The heirs then demanded what they had already paid, to which R. Hyya answered: It was decided long ago by a sage, and the decision must remain.
If one has confessed before two witnesses and they have made the ceremony of a sudarium, they may write it down; but if there was no sudarium, it must not be written. If he has, however, confessed before three without a sudarium, according to Rabh it may, and according to R. Assi it must not be written. However, there was such a case before Rabh, and he took into consideration R. Assi's decision.
R. Ada b. Ahba said: Such a document of confession is dependent upon circumstances. If the people were gathered by themselves and he confessed before them, then it must not be written; but if he himself caused the gathering, it may. Rabha, however, is of the opinion that even in the latter case it must not be written unless he said to them, "I accept you as my judges"; and Mar b. R. Ashi maintains that even then a judgment is not to be written unless they appoint a place, and summon him to the court.
It is certain, when one has confessed with the ceremony of a sudarium in cases of movable property, that a judgment may be written, but not otherwise. But how is it with real estate--without a sudarium? According to Ameimar it may not, and according to Mar Zutra it may be written. And so the Halakha prevails. It happened that Rabhina came to the city of Damhariah, and R. Dimi b. R. Huna of the same city questioned him: How is the law if the confession was for movable property which is still in full possession of the parties? And he answered: Then it is considered as real estate. R. Ashi, however, maintains that so long as the creditor has not collected it, it is to be considered as money, because if the possessor
would like to sell it, he could do so even after the confession, which is not the case in real estate.
There was a document of confession in which it was not written: "He (the debtor) has said to us, 'Write a document, sign it, and give it to him' (the creditor)," and both Abayi and Rabha decided that this case was similar to that of Resh Lakish, who decided that witnesses would not sign a document unless they were aware that the person who told them to sign was of age; the same is the case here, they would not sign it unless he said to them, "Sign and give." R. Papi, according to others R. Huna b. Joshua, opposed: Is there a thing of which we, the judges, are not sure, and the scribes are? Therefore the scribes of Abayi and of Rabha were questioned, and they were aware of the law, when it must be written and when not. There was another document of confession in which the memoranda, and all the versions which are needed thereto, were written correctly, but. the words, "in the presence of us three," were missing, and the document was signed by two only. And Rabhina was about to say that this case was similar to that of Resh Lakish mentioned above; but R. Nathan b. Ami said to him: Thus was it said in the name of Rabha: In such a case it may be feared that it was an error by the court--i.e., they thought that such might be done by two. Said R. Na'hman b. Itz'hak: If in the document was written, "we the Beth Din," although it was signed by two, it is valid without any investigation. But perhaps it was written by an impudent Beth Din of two, of which, according to Samuel, the decision is to be considered, but they are named impudent (and the Halakha does not so prevail). The case was that the document read, "the Beth Din appointed by R. Ashi." Still, perhaps the same holds with Samuel. It means that it was written: Our master, Ashi, thus said.
The rabbis taught: If one said I have seen your deceased father hide money in a certain place, saying this belongs to so and so," or, "The money is for second tithe," if this place is to be found in this house, he said nothing. if, however, the place was in a field, where the witness could take it without being prevented, his testimony is to be considered, this being the rule in such a case. If he is able to take it himself without notifying, his word is to be trusted, but not otherwise. Moreover, if they themselves saw their father hide money in a chest, or the like, and he said to them, "This money belongs to so and so," or, "It is for second tithe," if it looks as if he told this as his last will,
he is to be trusted; but if it appears that he desires to deceive them, then his words are not to be considered. The same is the case if one became harassed, searching for the money which his father left for him, and he dreamed that the sum was of such and such an amount and was placed in a certain place, but it was for second tithe. Such a case happened, and the sages decided that the caprices of dreams are not to be taken into any consideration.
"If two of the judges acquit," etc. But how is the judgment to be written? According to R. Johanan, "So and so is ac. quitted," and according to Resh Lakish, "Such and such judges acquitted, and such hold him liable." R. Elazar, however, says it should be written, "From the discussion of the judges, the decision is that such is acquitted." And what is the difference? The tale-bearing. According to R. Johanan it must not be written who acquits and who holds liable, as this would appear like tale-bearing; and according to Resh Lakish, it must be written, as, if not, it would appear like a unanimous verdict, and it would look as though they had lied; and R. Elazar's decision is: To prevent vainglory it may be written, "From their discussion, the decision is that the defendant is acquitted," in which there is no tale-bearing and it does not appear unanimous.
"Are told to enter." Who? Shall we assume the parties? It is not stated the parties, but the witnesses, must go out. You must then say that the witnesses are told to enter, and this would not be in accordance with R. Nathan of the following Boraitha: The testimony of the witnesses is not to be conjoined unless both witnesses have seen the case together. R. Jehoshua b. Karha, however, maintains that, even if they have seen one after the other, their testimony is not to be approved by the court unless they both testify together. R. Nathan, however, maintains that the court may hear the testimony of one to-day, and on the morrow from the other one, when he appears. Hence, according to him, both witnesses may not be present? The Mishna means the parties, and it is in accordance with R. Nehemiah, who said in the following Boraitha: So was the custom of the pure-minded in Jerusalem. They let the parties enter, listened to their claims, and thereafter let the witnesses enter, listened to their testimony, and told all of them to go out, and then discussed the matter.
The text says that their testimony is not conjoined, etc. What is the point of their difference? If you wish, it may be said common sense. If, for instance, one testifies that he has
seen A borrow a mana from B, and on the morrow the other witness testifies that he has seen A borrow a mana from B, one may say, e.g., C has seen one mana and D has seen another mana. Hence their testimony cannot be conjoined according to the first Tana of the Boraitha; but according to R. Jehoshua b. Karha it may be conjoined, as both admit that A owes a mana to B. This is common sense. And if you wish, they differ in the meaning of the verse [Lev. v. 1]: "And he is a witness," etc. And there is a Boraitha: It reads [Deut. xix. 15]: "There shall not rise up one single witness against." Why is it written "single"? This is a rule for every case in which is mentioned "a witness," that it means two, and the term single is expressed because their testimony is to be considered only then when they saw it together. So is the explanation of the first Tana. B. Karha, however, gives his attention to the verse cited [Lev. v.]: "And he is a witness, since he either hath seen or knoweth something." Hence it matters not whether they have seen together or singly. And what is the point of difference between R. Nathan and the first Tana? Also, if you wish, it is common sense; and if you wish, in the explanation of the Scripture. "Common sense"--usually one witness is brought not to make the defendant pay, but to make him liable for an oath. Hence, if their testimony does not come together, it cannot be conjoined to make the defendant pay. Such is the meaning of the first Tana. But Nathan maintains: Even when they come together, does, then, their testimony go out from one mouth? They testify one after the other, and we conjoin them. The same is the case when they come on two days. "In the explanation of the Scripture "[ibid., ibid.]: "If he do not tell it, and thus bear his iniquity." And both the first Tana and Nathan hold with the opponents of B. Karha, that both witnesses have to see the case together. And the point of their difference is, if the testimony is to be similar to the seeing of the case. One holds it is: hence it cannot be conjoined if not seen together; and one holds it is not.
Simeon b. Alyaqim was anxious that the degree of Rabbi should be granted to Jose b. Hanina, but the opportunity did not present itself. One day they were sitting before R. Johanan, and the latter questioned: Is there one here who knows if the Halakha prevails with B. Karha or not? And B. Alyaqim pointed to Jose b. Hanina, saying: He knows. Johanan then said: Then let him tell. But B. Alyaqim, however, rejoined: Let the master give him the degree of Rabbi, and then he will tell. And he did so,
and then said to him: My son, tell me just so as you have heard. And he answered: I have heard that B. Karha yielded to R. Nathan. Rejoined R. Johanan: Is that what it was necessary for me to know? Is it not self-evident that B. Karha could not demand that they should testify together, as he does not desire that the seeing shall be together? Nevertheless, since you have already ascended to the degree of Rabbi, it may remain with you. And R. Zera said: Infer from this act that if a great man gives a degree, even conditionally, it remains forever.
Hyya b. Abin in the name of Rabh said: The Halakha prevails with Jehoshua b. Karha concerning real estate, as well as movable property. Ula, however, maintains: It prevails with him concerning real estate only. Said Abayi to Hyya: You say that the Halakha prevails. Is there one who differs with him? 'Did not Aba say in the name of R. Huna, quoting Rabh: The sages yield to B. Karha concerning the testimony as to real estate. And so also taught Idi b. Abin in the Section Damages, taught by the College of Karna: The sages yield to B. Karha concerning the testimony as to a first-born, as to real estate, as to hazakah, and concerning the signs of maturity--for a male as well as for a female? You contradict one person with another. People may hold different opinions. Said R. Joseph: I say in the name of Ula that the Halakha prevails with B. Karha concerning real estate, as well as movable property. However, the rabbis who came from the city of Mehuza say in the name of Zera, quoting Rabh: Concerning real estate, but not concerning movable property. And Rabh is in accordance with his theory elsewhere, that a confession after a confession, or a confession after a loan, may be conjoined; but a loan after a loan, or a loan after a confession, do not conjoin. (I.e., if one says, "In my presence A confessed on Monday that he owed a mana to B"; and the second witness says, "In my presence A confessed on Tuesday that he owed a mana to B," they may be conjoined. And the same is the case if one says, "On Monday A borrowed from B a mana in my presence," and the other witness testifies, "In my presence A confessed on Tuesday that he owed a mana to B." But if one testifies that in his presence A made a loan to B on Monday, and the other testifies that the same was done on Tuesday, they are not to be conjoined, as they may be two different manas. And the same is the case if one testify that A confessed on Monday that he owed a mana to B, and the other testified that B had made a loan to A on Tuesday.)
Na'hman b. Itz'hak met Huna b. R. Jehoshua, and questioned him thus: Let us see why the testimony of a loan after a loan is not to be conjoined. Because the loan which one witness has seen may not be the same which the other saw. Why, then, not say the same concerning a confession? Say, the confession of Tuesday was not the same as that of Monday? The answer was: He speaks of when he said to the last witness, "The mana which I confess before you is the same as that which I confessed yesterday before so and so." But even then, the second witness only knows this, but not the first. It means that after he has confessed before the second he goes again to the first witness, telling him, "The mana which I confessed before you, I did so also before so and so." Rejoined Na'hman: Let your mind be at rest, for you have set my mind at rest. And Huna asked him: What was the trouble? Because I had heard that Rabha, and according to others R. Shesheth, swung an axe at it (i.e., disproved the opinion), saying: Is this not similar to a confession after a loan? Which means that he said in his confession, "I confess before you that I owe a mana to so and so, which I borrowed yesterday in the presence of so and so." Hence it was already said once by Rabh. Why, then, the repetition? Rejoined Huna: This is what I have heard of your people--when they tear out trees, they plant them again (i.e., you answer questions, and then object to them again). The sages of Nahardea, however, say that, no matter if it is a confession after a confession, a loan after a confession, or a loan after a loan, they are to be conjoined, as they hold with B. Karha.
R. Jehudah said: Witnesses in civil cases who contradict one another in unimportant investigations are to be considered. Said Rabha: It seems that he meant that the contradiction was that one said the purse in which the mana was given was a black one and the other said it was a white one. But if one says that the loan was with old coins and the other said it was with new ones, they are not to be conjoined. But is such a contradiction not to be taken into consideration even in criminal cases? Did not R. Hisda say that if one testifies that he killed him with a sword and the other with an axe, it is not to be considered; but if one says the murdered or the murderer was dressed in white, while the other testifies that he was dressed in black, their testimony holds good? And the answer was: Do you contradict one scholar with another? Each may have his own opinion. The Nahardeans, however, maintain that even if one testifies old coins
and the other new, they are nevertheless to be conjoined; and this is because they hold with B. Karha. But have you then heard B. Karha say that they may be conjoined even when they contradict each other? Therefore we must say that the Nahardeans hold with the Tana of the following Boraitha: R. Simeon b. Elazar said: The schools of Shamai and Hillel do not differ, if there were two parties of witnesses. If one party testifies that he owes him two hundred, and one party testifies one hundred, the latter amount is to be collected, as in the testimony of two hundred one hundred is certainly included. In what they do differ is that, if among one party of witnesses was this contradiction (i.e., one says that he owes two and the other one hundred), according to the school of Shamai the whole party must be disqualified, because one of them is surely a liar; and according to the school of Hillel they are not, as both admit that he owes one hundred (and so the Nahardeans, be it old or new coins, both admit that he owes a mana). Suppose one testifies that he borrowed a barrel of wine and the other of oil. Such a case came before Ami, and he made him liable to pay the value of a barrel of wine, as a barrel of oil amounts to twice as much as a barrel of wine. But according to whom was his decision? Is it in accordance with R. Simeon b. Elazar? He said so, because in the amount of two hundred a hundred is surely included; but did he say so in such a case as that of the barrels? The case was that they testified not for the barrels themselves, but for the value (i.e., one testified that he owed him the amount of a barrel of wine and the other the amount of a barrel of oil, which is twice as much).
Suppose one of the witnesses says the law was made in the first attic, and the other says in the second attic. Said R. Hanina: Such a case came before a rabbi, and he conjoined their testimony.
"And whence do we know that one of the judges must not say?" The rabbis taught: Whence do we know that one of the judges, when he is going out, must not say, "I was in favor of the defendant, but my colleagues were against, and I could not help it, as they were the majority"? To this it reads [Lev. xix. 16]: "Thou shalt not go up and down as a talebearer among thy people"; and it reads also [Prov. xi. 131 "He that walketh about as a talebearer revealeth secrets." There was a disciple of whom there was a rumor that he told a secret thing which was taught in the college, after twenty-two years, and R. Ami drove him out of the college, saying: This man is telling secrets.
MISHNA VI.: So long as the defendant brings evidence to'. his advantage, the decision may be nullified by the court. If he was told: "All the evidence which you have, you may bring before the court within thirty days," if he found such within thirty days, it affects the decision, but after that it does not. Exclaimed R. Simeon b. Gamaliel: But what should the man do who could not find such within thirty days, but found it after? If he was told to bring witnesses, and he said, "I have none"; "Bring any other evidence," and he said, "I have none," and after the time had elapsed he brought evidence and found also witnesses, it is as nothing. And to this also R. Simeon b. Gamaliel exclaimed: What should this defendant do if he was not aware that there were witnesses and evidence? However, if, after he said "I have no witnesses," seeing that he is about to be liable, he says, "Bring in so and so to testify in this case," or he takes out from under his girdle a new evidence, it counts nothing (even according to R. Simeon).
GEMARA: Said Rabba b. R. Hana: The Halakha prevails with R. Simeon. And the same says again: The Halakha does not prevail with the sages. Is this not self-evident? If it prevails with R. Simeon, it cannot prevail with the sages? One might say the Halakha prevails with R. Simeon to start with; but if some have done in accordance with the sages, it should remain so. He comes to teach us that even if it was so done, it must be changed.
"If he was told to bring witnesses," etc. Said Rabba b. R. Hana in the name of R. Johanan: The Halakha prevails with the sages. And the same said again: The Halakha does not prevail with R. Simeon b. Gamaliel. Is this not self-evident--that if the Halakha prevails with the sages it cannot prevail with R. Simeon? He comes to teach us that only in this case the Halakha does not prevail with R. Simeon, but in all other cases it does; and this is to deny what Rabba b. b. Hana said in the name, of R. Johanan, that everywhere R. Simeon b. Gamaliel is mentioned in the Mishnayoth the Halakha prevails with him, etc. (Last Gate, p. 388). There was a young man who was summoned to the court before R. Na'hman, and he asked him: "Have you no witnesses?" and he answered: "No." "Have you some other evidence?" and he answered: "No." And R. Na'hman made him liable. The young man went and wept; and some people heard him cry, and said: We know something in your behalf in the case of your father. Said R. Na'hman: "In such a case even
the rabbis would admit that the young man was not acquainted with the business of his father and therefore the new evidence is to be taken into consideration." There was a woman with whom a document was deposited and she gave it away to some one, saying: "I am aware that this document is already paid," and R. Na'hman did not believe her. Said Rabha to him: Why should she not be trusted? Should she desire to tell a lie, she could burn it. And R. Na'hman answered: Inasmuch as it was approved by the court and known that it was deposited with her, the supposition that if she wanted to lie she could burn it does not apply. And Rabha objected to R. Na'hman from the following: A receipt which was signed by witnesses may be approved by its signer. If, however, there were no witnesses, but he was coming out from a depository; or the receipt was written on the document after the signature of the witness (which was in the hands of the creditor), it is valid. Hence we see that a depository is to be trusted. This objection remains. When R. Samuel b. Jehudah came from Palestine, he said in the name of R. Johanan: The defendant has always a right to bring evidence against the decision of the court, unless all his claims are concluded and he himself confesses that he has no more witnesses nor any other evidence. However, even after this, if witnesses arrived from the sea countries, or the box of documents of his father was deposited with a stranger who has returned it after he was found liable, it may be taken into consideration to change the first decision. When R. Dimi came from Palestine, he said in the name of R. Johanan: If one is summoning a party who says, "I want my case to be brought before the assembly of sages," while the plaintiff says, "It is sufficient that it be tried in the court of this city," the plaintiff may be compelled to follow the defendant to the assembly. Said R. Elazar: Rabbi, is it right that, if the plaintiff claims one mana from the defendant, he shall spend another mana to go with him to the assembly? Therefore the reverse must be done: The defendant should be compelled to bring the case before the court in that city. It was taught also in the name of R. Saphra: If two men were cruel to one another, and one of them insisted, "We shall try our case here," while the other says, "Let us go to the assembly," the latter must be compelled to try his case in that city. However, if there was a necessity to question the assembly, they might write and send it in writing. And also, if the defendant demands, "Write down the reason why you accused me, and give it to me," he
may be listened to. In the case of a widow whose husband dies childless and she has to marry his brother, she is obliged to go to that place where the brother is to be found (that he should marry her or perform the ceremony of Halitzah). And to what distance? Said R. Ami: Even from Tiberias to Sephorius. Said R. Kahana: Whence is this deduced? From the Scripture [Deut. xxv. 8]: "The elders of his city"; of his, but not of hers. Said Ameimar: The Halakha prevails that one may be compelled to go to the assembly (and there try his case). Said R. Ashi to him: But did not R. Elazar say: He maybe compelled to try his case in that city? This is when the borrower said thus to the lender; but if the lender claims so, we apply to him [Prov. xxii. 7]: "The borrower is servant to the man that lendeth."
A message was sent from Palestine to Mar Uqba: To him to whom the world is light as to the son of Bathiah (it means to Moses), peace may be granted. Uqban the Babylonian complained before us that Jeremiah his brother destroyed his way (i.e., he has treated me badly, through which I have lost my money), and we have decided that he shall be compelled to appear before us in the city of Tiberias. (How is this to be understood? Thus:) They said to him: You may try him. If he will listen to you, well and good; and if not, you must compel him to see us in the city of Tiberias. Said R. Ashi: This was a case of fine, and in Babylon they are not allowed to try cases of fine; and that which they said to Mar Uqba, "You shall try him," etc., was only to honor him.Footnotes
68:1 Here is a repetition from Tract Sabbath, pp. 89-92, which is already translated.
75:1 The Haggadic passage we have transferred to the last chapter of this tract, which is all Haggadah.
76:1 Rashi gives also another interpretation to this passage; viz., mental resolution frequently fails, even if it is concerning the study of the Torah--e.g., if one made up his mind to finish such and such a tract in a certain time. And to this came Rabba to say, if it was for the sake of Heaven, it would not fail, etc.
76:2 Rashi explains this, that one is suspected of such an offence, but cannot be punished with the prescribed punishment because there were no legal witnesses p. 77 or he was not warned, has nevertheless been punished with stripes, as so it is stated (Tract Kidushin, 81b).
77:1 Our explanation in the case of angering may be new, as we are not in accord with other commentators. However, it seems to us that this is the correct interpretation, as to which we challenge criticism.
Commentary on Law, Oral Tradition
BOOK VIII, The Sanhedren, and the Legal Code; Jewish Thought evolution from Moses and Mount Sinai through Years of Jesus, to AD 200;
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