Commentary on Law, Oral Tradition
The Sanhedren, Book-8, Legal Structure, Part-2,
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Commentary on Law, Oral Tradition
BOOK VIII, Sanhedren, and Legal Code PART 2; Jewish Thought evolution from Moses and Mount Sinai through Years of Jesus, to AD 200;
p. 97CHAPTER IV.
RULES AND REGULATIONS CONCERNING EXAMINATIONS AND CROSS-EXAMINATIONS OF WITNESSES IN CIVIL AND CRIMINAL CASES. THE DIFFERENCE IN JUDGING AND IN DISCUSSIONS BETWEEN CIVIL AND CRIMINAL CASES. HOW THE MEMBERS OF THE SANHEDRIN WERE SEATED. HOW MANY RECORDING SCRIBES WERE NEEDED. HOW JUDGES WERE ADDED IF NEEDED, AND FROM WHAT PEOPLE. HOW WITNESSES SHOULD BE FRIGHTENED IN CRIMINAL CASES. THE REASON WHY ADAM THE FIRST WAS CREATED SINGLY.
MISHNA I.: Cases coming before the court, be they civil or criminal, the witnesses thereof must be examined and investigated. As it is written [Lev. iv. 22]: "One manner of judicial law shall ye have." But what difference is there between civil and criminal cases? It is the following: (a) The former cases are to be tried by three, and the latter by twenty-three judges. (b) In the former the discussion may commence either with the accusation or with the defence, while the latter must commence with the defence and not with the accusation. (c) In the former case one voice suffices either to accuse or to acquit, and in the latter he is acquitted by one voice, while to condemn two are needed. (d) In the former the judge who proclaimed his view either to advantage or to disadvantage may, after deliberating, announce his view to the contrary. In the latter, however, he may do so only to acquit, but not to condemn. (e) In civil cases the whole body of the court may defend or accuse, while in criminal cases all of them may acquit, but the whole body must not accuse. (f) The former may be discussed in the daytime and the decision rendered at night, while in the latter the decision must be in the daytime. But if they did not come to a conclusion on the same day, they have to postpone it to the morrow. (g) The decision concerning the former may be reached on the same day either to one's advantage or to his disadvantage, while in the latter the decision may be rendered on the same day to free him, but not to condemn him until the next day; and, therefore, cases of capital punishment must not be begun on the eve of Sabbath or of a legal holiday. In civil cases,
and regarding defilement and purity, they begin by asking the opinion of the eldest, while in criminal cases they begin with those who are sitting on the side.
All are qualified to judge civil cases, but not every one is qualified to judge criminal cases; as to the latter--only priests, Levites, and Israelites who may legally marry daughters of priests.
GEMARA: Are investigation and examination indeed needed in civil cases? If so, there is a contradiction from the following Tosephta: A document of which the date shows the first of Nissan in a Sabbatical year and witnesses came, saying, "How can you testify in favor of this document--were you not with us at the same date mentioned in the document in such and such a place?" The document as well as the witnesses are valid, as it is to be supposed that they might have written the document after the date mentioned therein. Hence if investigation and examination are needed, why should they be valid because of the above reason? Would not the investigation show if it were so or not. But according to this theory, how is to be understood the following Mishna: Promissory notes which were written at an earlier date are invalid. However, if they were written at a later date, they are. Now, if an investigation in civil cases is needed, why should that which was written at a later date be valid? (The investigation would show that the witnesses who signed the document were not present when the loan was made, as it was signed at an earlier date. Hence the loan which was made earlier is to be considered a verbal loan, which does not collect from encumbered estates, and the note should be considered a forgery?) This presents no difficulty, the objection mentioned applying more to the statement of the Boraitha, as it speaks of a Sabbatical year, in which people do not usually lend money because of the law [Deut. xv. 2] of that year, and nevertheless it makes valid that which was written in the month of Nissan, because the above-mentioned law concerning promissory notes applies only at the end of the year. However, the contradiction to our Mishna remains!
R. Hanina said: Biblically there is no difference between civil and criminal cases concerning investigations, as it reads, "One manner of judicial law," etc. But why was it enacted that civil cases do not need investigation? So as not to close the door to borrowers. (And our Mishna, which states that it is needed, was taught before the enactment; and the Boraitha cited after the enactment.) But if so, let the judge who made an error in the
decision of the case not be responsible? If this should be enacted, so much the more would the door be closed to borrowers. Rabha, however, maintains that our Mishna treats of fine cases and the Boraitha of loan cases. However, both were taught after the above-mentioned enactment. And R. Papa maintains that both treat of loan cases. But our Mishna speaks of a case which appears to the court unfair; and to such, investigation is needed. The Boraitha speaks of non-suspicious cases. And this is in accordance with Resh Lakish, who used to propound a contradiction to the following: It reads [Lev. xix. 15]: "In righteousness shalt thou judge thy neighbor"; and Deut. xvi. 20 reads: "Justice, only justice, shalt thou pursue," from which it is to be understood that an investigation is needed? And he answered that the first verse speaks of an ordinary case and the second of a suspicious one. R. Ashi, however, maintains that the above answer of R. Papa, concerning the contradiction from the Mishna, holds good. However, the supposed contradiction of the verse is to be explained that the first speaks of a strict law and the second of an arbitration, as the following Boraitha states: "Justice, only justice," etc., one word means strict law and the other means arbitration. How so? If, e.g., two boats are plying on a river and they meet each other, if both try to pass where there is not room, both would be lost; but if one passes after the other, both would be saved. And the same is the case with two camels passing the steps of Beth Chorin, which met each other. If both tried to pass together, both would fall; but if one after the other, both would be saved. Then the strict law is that the unloaded one should wait, and the loaded one pass; or, if one was near to the dangerous place and the other far off, the nearer one has to pass; but if both were loaded, or if both were at the same distance, then arbitration must be used as to which one has to pay to the other for loss of time.
The rabbis taught: "Justice, only justice, shalt thou pursue," means that one shall follow to the city of a celebrated judge, e.g., at Luda, after R. Elazar; at Brur-Heil, after Rabban Johanan b. Zakkai. [There is a Boraitha: (At the time the government had forbidden circumcisions and weddings, they made use of handmills to announce a circumcision.) Then, if one heard the sound of a handmill in the city of Burni, he understood that there was a ceremony of circumcision in that city; and if one saw many lights in Bene Heil, he understood that there was a wedding banquet in that city].
There is another Boraitha interpreting the cited verse thus: You should always trouble yourself to follow after the sages in assembly, as, for instance, after R. Elazar at Luda; after R Johanan b. Zakkai at Brur-Heil; after Jehoshua at Pekiein; after Rabban Gamaliel at Jamnia; after Aqiba at Bene Braq; after Matia at Rome; after Hanania b. Thrduin at Sikhni; after Jose at Sephorius; after Jehudah b. Bathyra at Nzibin; after Hanina, the nephew of Jehoshua, in exile; after Rabbi at Beth Shearin; and (when the Temple was in existence) after the sages at their assembly in the chamber of the Temple.
"With the accusation or with the defence." But what has the court first to say to the advantage of the defence in criminal cases? Said R. Jehudah: The court may ask the witness: "Whence do we know that it was as you say?" But from such an interrogation the witness will become dejected, and will refrain from saying anything. [But let him be dejected? Have we not learned in a Boraitha, R. Simon b. Eleazar said: The witnesses may be transferred from one place to another that they shall become dejected and retract from their statement if it was not true? What comparison is this? There they become dejected by themselves; but here, if you say to them, "Whence do we know that what you say is true?" you cause them to be dejected.] Therefore said Ula: The court questioned the other party, "Have you other witnesses to make collusive the witnesses of your opponents?" Said Rabba to him: Is this what you call beginning with the defence? With this saying you begin by accusing witnesses of the other party. Therefore said he: The court may say to the other party, "Have you other witnesses who may contradict the witnesses of your opponent?" R. Kahna says: The court may say, "From your testimony it seems that the defendant may be acquitted"; and thereafter they discuss the matter. Both Abayi and Rabha say: The court may say to the defendant, "Do not fear; if you have not committed the crime, nothing will be done to you." And R. Ashi said: The beginning should be with the announcement of the court: Every one who knows of a defence concerning the defendant may come to tell it before the court. There is a Boraitha in accordance with Abayi and Rabha as follows: It reads [Num. v. 19]: "If thou hast not gone aside to uncleanness behind thy husband, then be thou free." Said Rabbi: Infer from this that in criminal cases the beginning must be with the defence (as it is written first, "then be thou free").
"May after deliberating . . . announce to the contrary." There is a contradiction from the following: If one has tried a case and made liable him who is not, or vice versa; has purified a thing which is unclean, or vice versa, his decision holds good, but he has to pay for his error from his own pocket. (Hence we see that he must not retract?) Said R. Joseph: This presents no difficulty. A judge who was appointed by the court, if he made an error, he must pay for it; but if he was appointed by the parties only, he has not. But is there not a Boraitha: If he was appointed by the court, he has not to pay? Said R. Na'hman: The just cited Boraitha treats of when there was a superior judge to him, who ignores his decision; therefore he is free from paying, as the superior judge decides it properly. But if there is no superior and his decision remains, then he must pay for his error. R. Shesheth, however, maintains: It depends in what the error was made. If he erred in that which is plainly taught in a Mishna, then he has not to pay, because his decision will not be executed; but if he erred in his opinion, then he has to suffer. So did he hear from R. Assi. Rabhina questioned R. Ashi: Is it the same even if he has erred in that which was taught in the Boraithas of R. Hyya and R. Oshia? And he answered: Yea. And how is it if he erred in that which was said by Rabh and Samuel? And he answered: Yea. And how is it if he erred in that which was said by you and me? And he rejoined: What, then, are we? Are we splitting wood or gathering splinters in the forest! How is to be understood, "erred in his opinion"? (See the answer in Chapter I., page 9, line 21.)
R. Hamnuna objected to R. Shesheth from the following: It happened that a cow of which the womb had been removed was brought before R. Tarphon, and he made the owner give it to the dogs. However, a similar case came before the sages in Jamnia, and they made it valid, because Tudus the physician testified that not one cow or one swine was sent out from Alexandria in Egypt of which the womb was not removed, Or the purpose that they should not bring forth offspring. And R. Tarphon exclaimed thus: O Tarphon, thy ass is gone! (I.e., I have to sell my ass to pay for the error.) Said R. Aqiba to him: You are free, as there is a rule that a judge who is appointed by the majority h-as not to pay for his error. Now, if an error in that which was taught in a Mishna does not hold good and must be redecided, why does not Aqiba say: You have erred against a
Mishna? R. Aqiba meant to say both--first: You have erred against a Mishna; and secondly: Even if you erred in your own opinion you would also be free, because you were chosen by the majority.
Said R. Na'hman b. Itz'hak to Rabha: How could R. Hamnuna object to Shesheth from the case of the cow? Did not Tarphon give it to the dogs? Hence the cow was no longer in existence, and it could not be redecided. Hamnuna meant to say thus: If the decision should be that the case of one who erred against a Mishna is not to be redecided, it is correct that Tarphon was afraid that he must pay, and R. Aqiba told him that he must not, because he was a recognized judge. But if the Halakha is that in such a case it must be redecided, let Aqiba say to him: How would it be if the cow were still in existence--your decision would not remain and the cow would be declared valid? The same is the case even now that it is not in existence, as you did not yourself give it to the dogs: You had only decided that it was invalid, and as your decision does not count, the owner of the cow, himself, has to suffer for his act.
R. Hisda, however, explains our Mishna that it means: If the judge himself took from the one who was liable in his eyes and gave to his opponent, only then must he pay from his pocket, but not otherwise. But this would be correct in one case only--namely, if he had made liable the just, then we could say that he took from the just and gave to his opponent. But how could this be done in the second case, in which he has acquitted the one who was liable, as he only said to him: You are not liable? His decision, "You are free," is counted as if he would take with his hand and give to him. But if so, how is to be understood the following statement of the Mishna, that the judge may retract from this view, no matter if it is concerning defence or accusation, as this can be explained only in case he said to the just, "You are liable," but did not collect from him, as then he may retract and say, "You are not liable"? But in case he made liable a just man, how could such a case take place, if not by the decision, "You are free"? And it is said above that such a decision is considered as if he would take from one party and give to the other: hence, after such, no retraction can take place. Our Mishna, with its expression, "whether in defence or in accusation," means to say that with the acquittal of one party the other party is accused; namely, a retraction may take place in behalf of one who was erroneously made liable but it was not as yet collected,
although it is a disadvantage to his opponent, but in case he has acquitted the one who is liable he has to pay from his pocket. But if so, then in criminal cases a retraction could take place only when it is in behalf of the defendant. but at the same time his opponent is not accused. And this can be said if the criminal case was a violation of Sabbath or a case of adultery; but in case of murder, how can such be found? But how, if there is a retraction that he is not guilty of slaying a person, who is accused? It may be said the relatives of the person murdered; as biblically, if the relatives of the person murdered took revenge on the murderer and slew him, he is freed; and by the retraction from guilty to not guilty, if the relative should put his hand on the murderer, he would be accused. But could such a thing be supposed? You mean to say, because perhaps the relative of the person murdered will take revenge, therefore no retraction shall take place and the defendant shall be put to death. And secondly, does not the Mishna state, whether concerning defence or accusation? This difficulty remains. Rabhina, however, says: Even in case he has acquitted the one liable, it may also be found that the judge did it with his hand--namely, in case he had a pledge and the judge took it away from him and transferred it to the borrower.
"Criminal cases," etc. The rabbis taught: Whence do we know that if one was found guilty by the court, and thereafter one came, saying: I know a defence for him, that the case may be retried? Because it reads [Ex. xxiii. 7]: "Him who hath been declared innocent and righteous, thou shalt not slay." Read: Him who was declared innocent even by one person, you shall not slay (without a reinvestigation). And whence do we know concerning the one who was acquitted by the court, and thereafter one says, "I know of a fact which will make him guilty," that he must not be listened to? From the same cited verse: "Him who hath been declared righteous, ye shall not slay." Said R. Shimi b. Ashi. And just the reverse may be done with a seducer, as the Scripture reads [Deut. xiii. 9]: "You shall not have any pity," etc. R. Kahana infers this from [ibid., ibid. 10]: "You shall surely kill him," etc.
R. Zera questioned R. Shesheth: Whence do we know that the same law applies to them who are to be punished with exile? And the answer was: From an analogy of the expression "murder," which is to be found in both cases. And whence do we know that the same is the case with them that are to be punished
with stripes? From an analogy of the expression, "wicked," which, is to be found in both cases. And so also is it plainly stated in a Boraitha.
"But not to condemn." Said Hyya b. Aba in the name of R. Johanan: Provided he has erred in a thing which the Sadduceans oppose; but if they admit, it must read so plainly in the Scripture. And such a decision is not to be taken in consideration at all, as schoolchildren are aware of it; it must be retried. The same Hyya questioned R. Johanan: How is it we err in a case of adultery? And he answered: So loner 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. You have heard from me that, a thing which the Sadduceans admit, his decision is not counted. Is not adultery one of these?)
"All of them," etc. Does the Mishna mean that even their witness who had accused him may also thereafter defend him? Then our Mishna is in accordance with R. Jose b. Jehudah, and,, not in accordance with the rabbis of the following Boraitha: It is written [Num. xxxv. 30]: "But one witness shall not testify against any person to cause him to die." It means whether to defend or to accuse. Jose b. Jehudah, however, maintains that he may testify to defend, but not to accuse. (Hence our Mishna is not in accordance with him.) Said R. Papa: Our Mishna with its expression all, means to add one of the disciples who sat in a row before the judges, and such may make use of his opinion according to all.
What is the reason of R. Jose's statement? Because it reads: "to cause him to die," we infer that only to accuse he must not testify, but to defend he may. But if so, why do the rabbis differ? Said Resh Lakish: Because it appears that the witness is interested in this case. And what do the rabbis infer from the words "to cause him to die"? They apply this to one of the disciples, as we have learned in the following Boraitha: If one of the witnesses says: "I have something to say in defence. of the defendant," whence do we know that he must not be listened to? From the verse cited: "One witness shall not testify." And whence do we know, if one of the disciples say, "I have something to say to the disadvantage of the defendant," that he must also not be listened to? From the same: "One shall not testify to cause him to die."
"Only to acquit, but not to condemn." Said Rabh: This is
said only at the time they discuss this matter; but at the time of the conclusion he may change his views from defence to accusation also. An objection was raised from the following: "On the morrow they arise early and come to the court. He who defended has to say: I defended yesterday and am of the same opinion to-day. And he who accused has also to say: I accused, and am of the same opinion to-day. However, he who had accused may change his view to defence, while this is not allowed to him who defended." Now, on the morrow it is time for the conclusion, and it nevertheless states that the defendant may not change his view? According to this theory, no discussion is to be prolonged on the morrow; and this is certainly not so. Hence the Boraitha means that he must not do so at the time of discussion.
Come and hear another objection: "All who take part in the discussion may explain their reasons, until one of the accusers shall yield to one of the defenders (and then the majority of one will suffice to acquit)." Now, if you say that one may change his view from defence to accusation, why does not the Boraitha state, "or to the contrary"? It is simply because the Tana of the Boraitha does not care to repeat a matter of accusation.
Come and hear another objection: "R. Jose b. Hanina said: If one of the disciples has defended and dies at the time of the conclusion, his view should be considered as if he were still alive." And why? Let it be said that if he were alive he might retract from his view? This is no objection, as in reality he did not retract. But how can you explain that the decision of R. Jose b. Hanina may correspond with Rabh's statement? Was not a message sent from Palestine as follows: R. Jose's statement denies our master's (Rabh's) statement? Nay, the message was just the contrary: R. Jose's statement does not deny the statement of our master in Babylon.
"Discussed in the daytime," etc. Whence is this deduced? Said R. Aha b. Papa: From [Ex. xviii. 22]: "And let them judge the people at all times." But how is it to be inferred from this that the conclusion must not be at night, and the discussion may? This is in accordance with Rabha, who has propounded a contradiction from the just cited verse to that of Deut. xxi. 16: "Then shall it be, on the day 1 when he divideth . . . what
he hath"--on the day, "but not at any time"? And the answer was that the beginning of the trial must be in the daytime, but the conclusion may be even at night-time in civil cases. Our Mishna is not in accordance with R. Mair of the following Boraitha: It reads [ibid., ibid. 5]: "Every controversy and every plague." 1 What have plagues to do with controversies? The Scripture compares controversies to plagues, in order to apply the law of the latter to the former. As concerning plagues it must be in the daytime [Lev. xiii. 14]: "But on the day," etc., the same is the case with controversies. And also as, concerning plagues, it cannot be judged by one who is blind, as the priest must see the signs, the same is the case with controversies. And also the law concerning controversies, which must not be judged by relatives, applies to plagues--that the priest must not be a relative of him who has the plague.
In the neighborhood of R. Johanan there was one who was blind who used to judge cases, and R. Johanan did not protest. But could R. Johanan be silent in such a matter? Is it not against his own decision? Did not he himself declare that the Halakha always prevails with an anonymous Mishna, and there is one which states: Every one who is qualified to judge is also qualified to be a witness? However, there are some who are qualified to witness, but not to judge; and the same R. Johanan has declared that it means one who is blind of one eye, who is qualified to witness, but not to judge. Hence one who is blind, who is disqualified to be a witness because he cannot see, ought also to be disqualified to judge? R. Johanan found another anonymous Mishna for his basis, namely: "Civil cases may be discussed in the daytime and the conclusion at night," which is the same as a case of one who is blind. But why does he give preference to the latter Mishna, and not to the first? If you wish, it may be said because the latter treats of a majority, while the first treats of an individual. And if you wish, it is because the latter is taught concerning the laws of trying cases.
"If they did not come to a conclusion," etc. Whence is this deduced? Said Shini b. Hyya: From [Num. xxv. 4]: "Take all the heads of the people and hang them up before the Lord in the face of the sun." If people have sinned, wherein have the heads of the people sinned, that they should be hanged? Said R. Jehudah in the name of Rabh: Thus said the Holy One, blessed be He, to Moses: "Take the heads of the people, and set
them at separate places, that they shall judge the guilty ones and hang them in the face of the sun (which means in the daytime)." And why in separate places? Shall we assume, because two capital punishments must not be decided on one and the same day? Did not R. Hisda say that this is said only when capital punishments are of different kinds, but if of one kind they may? Therefore it must be said: To hasten the execution of the guilty, that the anger of Heaven shall cease.
"They have to postpone it until the morrow." Whence is this deduced? Said R. Hanina: From [Is. i. 21]: "Righteousness lodged therein; but now murderers"--which means, formerly they used to postpone the condemnation for a night, and now that they are not doing so they are considered murderers.
"Must not be begun on the eve of Sabbath," etc. Why so? Because it could not be done otherwise; as, if they should begin and finish on the eve of Sabbath, perhaps they would need to condemn him, and then they would have to postpone it over night. And to conclude the case on Sabbath and to execute on the same day, the execution does not violate the Sabbath; and should it be executed at night, after Sabbath the law requires, "in the face of the sun"; and should the conclusion be on Sabbath and the execution on the following day, then it would be torture for the guilty one, which is not allowed. Should they begin on the eve of Sabbath and conclude on the day after Sabbath, then they are liable to forget the reasons. Although there were two scribes who used to write down the discussions--the defence as well as the accusation--they wrote only what was said, but could not write the heart of the man. And, therefore, it was impossible otherwise.
"They used to ask the opinion," etc. Said Rabh: I used to be among the judges of the court of Rabbi, and they used to begin the question of opinions with me. But does not the Mishna state that they have to begin with the eldest? Said Rabba b. Rabba, according to others Hillel b. Wals: It was different in the court of Rabbi, as in all cases they used to begin from those who were sitting at the side. The same said again: 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. Is this so? Was it not so with Jehoshua? Nay, there was Elazar the high-priest, who was equal to him. But was not Pinchas such a man? Nay, there were the elders who ruled with him. But was there not King Saul, of whom the same could be
said? Nay, there was Samuel. But did not Samuel die before Saul? It means, all the years of his life. But was not David such a man? There was Era of Ja'ir. He also departed before him. It means, also, all the years of his life. Was not King Solomon such a man? There was Shimi b. Geara. But did not Samuel slay him? It means, all the years of his life. Was there not Hezekiah? There was Shbna. Was there not Ezra? There was Nehemiah. Said R. Ada b. Ahbah: I can add thus: From the time of Rabbi until the time of R. Ashi there is also not to be found a man who was unique in all that is said above. But was there not Huna b. Nathan? R. Huna was under the influence of R. Ashi.
"Criminal cases they began from those sitting at the side." Whence is this deduced? Said R. Aha b. Papa: It is written [Ex. xxiii. 3]: "Neither shalt thou speak in a cause." (The term for "cause" is "rib," literally "quarrel," and "rab" means "great." ) Do not read "rib," but "rab," which means: You shall not contradict one who is greater than you. Rabba b. b. Hana in the name of R. Johanan said: This is inferred from [I Sam. xxv. 13]: "Gird ye on every man his sword, and they girded on every man his sword; and David also girded on his sword." (We see that first it was done by the people and afterwards by the master.)
Rabh said: One may teach his disciple, and at the same time may judge in association with him in criminal cases. An objection was raised from the following concerning purification and defilement. A father with his son, or a master with his disciple, are counted as two voices. However, in civil cases, in criminal cases concerning stripes, in consecration of the month and in the, establishment of leap year, a father with his son, or a master with his teacher, is counted as one voice only. (Hence we see that the master with his disciple cannot judge together in criminal cases, so that they should be counted two.) Rabh speaks of such disciples as R. Kahana and R. Assi, who needed only Rabh's tradition, but not his sagacity, to equalize things.
R. Abuhu said: In ten things civil cases differ from criminal cases. However, all of them do not apply to the case of an ox which is to be stoned, except as to the number of judges, twenty-three being needed, similar to all other criminal cases. But whence is this deduced? Said R. Aha b. Papa: From [Ex. xxiii. 6]: "Thou shalt not wrest the judgment of thy poor in his cause"; i.e., thou shalt not wrest the case of thy poor, but thou
mayst wrest the case of the stoning of an ex. (And as this law does not apply to the stoning of an ox, so do not apply the other laws except the one of the twenty-three, judges mentioned above.) But are there not some other things in which criminal cases differ from civil? Have we not learned in a Boraitha that among the Sanhedrin must not be any one of great seniority, a castrate, and those who have no children? R. Jehudah also adds to these a cruel man.
"All are competent to judge civil cases." What does the Mishna mean by the expression "all"? Said R. Jehudah. To add a bastard. But this was taught already in the above-mentioned Boraitha, that all who are competent to judge criminal cases are competent for civil cases. However, there are those who are competent for civil cases but not for criminal. And in our discussion we have debated: "What does it mean by all who are competent?" The same R. Jehudah said: It means to add a bastard. One means to add a proselyte and the other means to add a bastard; and both cases are necessary to be stated. For if a proselyte only were stated, one might say, it is because he is eligible to marry a daughter of an Israelite; but a bastard, who is not allowed to do so, is not competent. And if a bastard only were stated, one might say, because, after all, he is a descendant of an Israelite; but a proselyte, who is a descendant of a heathen, is not competent. Therefore both statements are necessary.
"But not all of them are competent to judge criminal cases." What is the reason? That which was taught by R. Joseph: As the court must be select in its uprightness, so it must be select in all other things--without any blemish. And R. Ameimar said: Where is there to be found an allusion to this in the Scripture? In [Solomon's Song, xiv. 7]: "Thou art altogether beautiful, my beloved, and there is no blemish on thee." But perhaps it means literally that the judges shall be without any bodily blemish? Said R. Aha b. Jacob: It reads [Num. xi. 16]: "And they shall stand there with thee"--which means those who are equal to thee (i.e., in birth, but not a proselyte and a bastard). But perhaps there is a difference, because of the glory of the Shekinah. Therefore said R. Na'hman b. Itz'hak: This is inferred from [Ex. xviii. 22]: "When they shall bear with thee." This means they shall be equal to thee in birth.
MISHNA II.: The Sanhedrin sat in a half-circle in order that they could see each other. Two scribes of the judges stood before them, one on the right and one on the left, and they wrote
down the reasons of the accuser and of the defender. According to R. Jehudah there were three--one who wrote down the reasons of the accuser and one the reasons of the defender, and one the reasons of both. And before them sat three rows of scholars (disciples). To every one of them his seat was known. If it was necessary to add a judge, one from the first row was elevated, and one from the second came and took the latter's place, and one from the third took the place of this one; and for the place in the third row one of the standing people was selected, but he did not take the same seat as the one departed occupied, but that to which he was entitled.
GEMARA: Whence is this deduced? Said R. Aha b. Hanina: From [Solomon's Song, vii. 3]: "Thy navel is like a round goblet which lacketh not the mixed wine." By "navel" is meant the Sanhedrin. And why were they named navel? Because they used to sit in the middle of the world (according to the Talmud, Jerusalem was the middle of the world and the Temple was in the centre of Jerusalem), and also protected the whole world. And why were they named a "round goblet"? Because the Sanhedrin sat in a circle: "Which lacketh not the mixed wine "--i.e., if one wished to leave, it must be seen that besides him twenty-three remained, and if there were less, he must not. "Thy body is like a heap of wheat fenced about with lilies," means that as from a heap of wheat all derive benefit, so all were pleased to hear the reasons given by the Sanhedrin in their discussions. "Fenced about with lilies" means that even a fence of lilies was not broken by them to go out of it. This is what was said by a certain Minn to R. Kahana: Your law permits a, man to stay alone with his wife during the days of her menstruation. Is it possible that flax and fire should be together and should not burn? And he answered: 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. Resh Lakish said: This is inferred from ibid. vi. 72, which means that even thy vain fellows, are full of meritorious acts--like the pomegranate. 1 R. Zera said: From [Gen. xxvii. 27]: "And he smelled the smell of his garments," etc. Do not read "bgadov," which means dress, but "bagdov," which means his transgressor. There were ὓβριον 2
(insolent fellows) in the neighborhood of R. Zera, who nevertheless associated with them and showed them respect, to the end that they should repent. The rabbis, however, were not satisfied with this. But after the soul of R. Zera had gone to its resting-place the above-mentioned people took this to heart, saying: Hitherto there was the little man who prayed for us, but now who will do so? And they repented and became good.
"Three rows," etc. Said Abayi: Infer from this that if one left his place, all in the row had to change their places. But could one not protest, saying: Hitherto I have sat in front, and now you place me in the back? Said Abayi: To such a protest he was answered: There is a parable that it is better for one to be the tail of a lion than the head of a fox.
MISHNA III.: How were the witnesses awestruck in criminal cases? They were brought in and warned: Perhaps your testimony is based only on a supposition, or on hearsay, or on that of another witness, or you have had it from a trustworthy man; or perhaps you are not aware that finally we will investigate the matter by examination and cross-examination. You may also be aware of the fact that there is no similarity between civil and criminal cases. In civil cases one may repay the money damage and he is atoned; but in criminal cases the blood of the person executed, and of his descendants to the end of all generations, clings to the originator of his execution. So do we find in the case of Cain, who slew his brother. It reads [Gen. iv. 10]: "The voice of the 'bloods' of thy brother are crying unto me from the ground." It does not read "blood," but "bloods," which means his blood and the blood of his descendants. [According to others it reads "bloods" in the plural, because his blood was scattered all over the trees and stones.] Therefore the man was created singly, to teach that he who destroys one soul of a human being, the Scripture considers him as if he should destroy a whole world, and him who saves one soul of Israel, the Scripture considers him as if he should save a whole world. And also because of peace among creatures, so that one should not say: My grandfather was greater than yours; and also that the heretic shall not say: There are many creators in heaven; and also to proclaim the glory of the Holy One, blessed be He. For a human being stamps many coins with one stamp, and all of them are alike; but the King of the kings of kings, 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. Therefore
every man may say: The world was created for my sake, hence I must be upright, just, etc. Should you (witnesses) say: Why should we take so much trouble upon ourselves? To this it is written [Lev. v. 1]: "And he is a witness, since he hath seen or knoweth something; if he do not tell it, and thus bear his iniquity." And should you say: After all, why should the blood of this man cling to us? To this it is written [Prov. xi. 10]: "When the wicked perish, there is joyful shouting."
GEMARA: The rabbis taught: What means a supposition? The court may say to them: Although you saw that one ran after his companion to a ruin and you ran after them, and found a sword in his hand from which the blood dripped, and you also saw the one killed move convulsively, you saw nothing (so long as he did not kill him in your presence).
There is a Boraitha: Simeon b. Shetha said: May I not live to see the consolation of our people if I did not see one who ran after his companion to a ruin, and I ran after him, and saw a sword in his hand from which blood dripped, and the one killed moved convulsively, and I said to him: You wicked one, who has slain this man--I or you? But what can I do that your blood is not legally in my hands, as it reads [Deut. xvii. 6]: "Upon the evidence of two . . . be put to death." But He who knows the thoughts of man shall take revenge on this man who has slain his companion. It was said that both (Simeon and the murderer) had not moved before a snake came and stung the guilty one that he died.
But was this man liable to be killed by a snake? Did not R. Joseph say, and so also taught the disciples of Hiskia: Since the Temple was destroyed, 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--as, e.g., he who is liable to be stoned finds his death by falling from a roof or by being trodden down by a wild beast; he who is liable to be burned finds his death by fire or by the bite of a snake; he who is liable to be slain by the sword falls into the hand of the government, which slays him, or he comes to death by the sword of murderers; and he who ought to be hanged finds his death by drowning in the river or by diphtheritis. (But the murderer is only to be slain, and not burned?) This man was liable to be burned for another, crime; and the master said elsewhere that he who is guilty of two crimes is to be punished by the heavier death.
"Supposition." We see that a supposition does not hold good
in the case of crimes. Does it hold good in civil cases? And if yea, it would be in accordance with R. Aha, who said in the "Last Gate" that if there was a biting camel among camels and a killed camel was found at its side, it might be taken for a certainty that it had killed him and its owner was liable. But according to this theory, if there was a witness who heard this by hearsay from another, which is not considered in criminal cases, it should be considered in civil. Does not the Mishna state that if he said, "The defendant has confessed to me that he owes," etc.; or, "So and so told me that he owes him," he said nothing? Hence if such does not hold good in civil cases, why should this be repeated concerning criminal cases? Therefore we must say that, notwithstanding that such a testimony is not considered in civil cases, they nevertheless warned them in criminal cases. The same is the case with the above-mentioned case of supposition.
"You shall be aware," etc. R. Jehudah b. Ahia said: Infer from the verse cited in the Mishna that Cain made wounds and gashes on the body of his brother Abel, as he did not know by what member the soul departed until he reached his neck. The same said again: From that time when the earth opened its mouth to receive the blood of Abel, it has not again opened. As it is written [Is. xxiv. 16]: "From the edge of the earth," etc. Hence it reads "from the edge," but not "from the mouth." Hiskia, his brother, however, objected to him from [Num. xvi. 32]: "And the earth opened her mouth," etc. And he answered it opened for disadvantage, but not for advantage. The above said again in the name of the same authority: Exile atones for only half of a sin, but not for all of it, as it reads [Gen. iv. 14]: "And I shall be a fugitive and vagabond on the earth," etc.; and [ibid. 16]: "And dwelt in the "land of Nod" (vagabond). Hence half of his sin was atoned. 1
"Therefore after them man was created singly." The rabbis taught: Adam the first was created singly, and why? That disbelievers should not say there were many Creators in Heaven. And another reason is because of the upright and the wicked, that the upright should not say: We are descendants of an upright man; and the wicked should not say: We are descendants of a wicked one (hence we are not to be blamed). There is another reason: Because of families, that they should not quarrel, saying
[paragraph continues] Our parents were better than yours. As we see that when only one man was created there are quarrels of rank, how much the more if many original Adams had been created. Still another reason: Because of robbers and forcers. As even now, when he was created singly, there are robbers and forcers although they are all from one father, how much the more would there be robbers and forcers if they were from different parents.
"To save the glory," etc. The rabbis taught: To save the glory of the King of the king of kings, the Holy One, blessed be he! A human being stamps many coins and all are alike, but the Holy One, blessed be He, has stamped every man with the stamp of Adam the First, and nevertheless not One is like his neighbor. As it reads [Job, xxxviii. 14]: "She is changed as the sealing-clay; and (all things) stand as though newly clad." And why are not the faces of men alike? Because one might see a nice dwelling or a handsome woman, and say: It is mine. As it reads [ibid. 15]: "And from the wicked is their light withdrawn, and the high-raised arm is broken."
There is a Boraitha: R. Mair used to say: In three things one is different from his neighbor--in voice, in face, and in mind: in voice and in face, because of adultery; and in mind, because of robbers. (I.e., if one were to know the mind of his neighbor, he would know of all his treasures and mysteries and would rob him of them. 1)
105:1 In Leeser's version it is not mentioned "on the day," notwithstanding that the text so reads, which, according to the sense, may mean "the time." The Talmud, however, takes it literally.
106:1 Leeser's translation does not correspond.
110:1 It is useless to quote the passage, as its translation does not correspond with the saying of Resh Lakish at all.
110:2 We have translated in accordance with Schönhack's Dictionary, as it seems to us correct.
113:1 Here come Haggadah, which we have transferred to the Haggadic part of this tract.
114:1 Here also are a few pages of Haggadah, which we have transferred to the Haggadic chapter.
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 PRELIMINARY QUERIES, EXAMINATION, AND CROSS-EXAMINATION IN CRIMINAL CASES. WHAT MAY OR MAY NOT BE CONSIDERED A CONTRADICTION OF WITNESSES. HOW IS IT IF A DISCIPLE NOT BELONGING TO THE JUDGES SAYS: "I HAVE SOMETHING TO SAY TO HIS ADVANTAGE OR DISADVANTAGE"? BY WHAT MAJORITY ONE MAY BE ACQUITTED AND BY WHAT ACCUSED; AND TO WHAT NUMBER JUDGES MAY BE ADDED, IF THEY CANNOT COME TO ANY CONCLUSION.
MISHNA I.: The court used to examine the witnesses with the following seven inquiries: (a) In what Sabbatic period? (b) In what year of the latter? (c) In what month? (d) On what date of the month? (e) On what day? (f) At what hour? (g) And in what place? R. Jose, however, maintains: "Only on what day? At what hour? In what place?" And also: Did you know this man? Did you warn him?
If the crime was idolatry, they were questioned which idols they worshipped and what kind of worship? He who is more particular and who enlarges the examination is praiseworthy. It happened that Ben Sakkai had examined the witnesses concerning the kind and the size of the figs of a certain fig tree which was connected with the crime.
What is the difference between examination and queries? In the latter, even if only one answered, "I don't know," the complaint is dismissed; while in examination, if one of the witnesses, and even two, claim that they did not know, their testimony holds good. In both cases, however, if they contradict each other, their testimony is ignored. If one says, "It happened on the second of the month," and the second says, "on the third of it," their testimony holds good, as it is to be supposed that to one was known the intercalation of the last month and to the other it was not. However, if one says "on the third" and the other says "on the fifth of the month," their testimony is ignored. If one says "in the second hour" and the other says "in the third," it holds good; but if one says "in the
third" and the other "in the fifth hour of that day," it is ignored. R. Jehudah, however, maintains that it still holds good; but if one says "in the fifth hour" and the other says "in the seventh," even according to R. Jehudah it is ignored, as in the fifth hour the sun is in the east, while in the seventh hour it is already in the west.
After one witness was examined they let the second enter and examined him. And if their testimony correspond, the discussion begins with the defence. 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. If, however, one of the disciples says, "I have something to say in his behalf," they take him out of his place, and set him among them, and he remains there the whole day; and if his words are reasonable, he is listened to. Furthermore, if the defendant says, "I have something to say in my behalf," he is to be listened to if there is something in his defence. If the judges find a good reason to acquit him, they do so immediately; and if not, they postpone the trial to the morrow. The judges then go out in pairs, and eat something--not much, but do not drink wine the whole day. They continue their discussion (outside of the court) all night, and on the morrow they come early to the court. He who was among the defenders says: I defended yesterday, and am still of the same opinion. The same is it with the accuser--he has to say: I accused, and am still of the same opinion. The one who has accused may retract from his statement of yesterday, to the advantage of the defendant. This is not allowed to him who has defended. If some of them erred in their statements, the scribes of the judges remind them of it. And again, if the conclusion is to the advantage of the defendant they free him immediately; and if not, they arise to be numbered. If twelve of them acquit and eleven accuse, he is acquitted. But if twelve accuse and eleven acquit, and even if eleven accuse and eleven acquit, but the twenty-third says, "I am in doubt"; even if twenty-two are for acquitting or accusing and one says, "I don't know," judges are to be added. And to what number? Two and two, till the whole number reaches seventy-one. And then if thirty-six acquit and thirty-five condemn, he is acquitted; but if vice versa, the discussion is prolonged until one of the accusers accepts the opinion of the acquitters.
GEMARA: Whence is all this deduced? Said R. Jehudah:
[paragraph continues] From Deut. xiii. 15: "Then shalt thou inquire and make search, and ask diligently." And it reads also [ibid. xvii. 4]: "And it be told thee, and thou hearest of it, thou shalt inquire diligently"; and also [ibid. xix. 18]: "And the judges shall inquire diligently." But perhaps the Scripture does not require seven queries in one case, and it is meant literally (namely, in the crime of a misled town three queries, and concerning idolatry two, and the same also concerning collusive witnesses; as in the former searching is mentioned three. times and in the latter searching is mentioned twice). As if seven in one case were needed, let the Scripture state all the above cases together, and then all other criminal cases would be inferred from this. Because searching is mentioned in all three cases above, we infer one from the other, so as to apply everything which is in one case to the others. But the law concerning those cases is not similar, as the case of a misled town cannot be equalized to the other two cases, as they are punished only in their body, but not in their estate; while in the case of a misled town all its estates must be destroyed. Neither can idolatry be equalized to the two cases, as the latter are put to death by the sword, while an idolater is to be stoned. And the case of collusive witnesses is also in one respect more rigorous than the others, as they are put to death without warning? One is inferred from the other, because of the analogy of the expression "diligently," which is to be found in all the cases, and would be superfluous if it were not written for that purpose. And to such an analogy, which comes from a superfluous expression, an objection is not to be made. Hence we infer the case which is to be punished with hanging by an a fortiori conclusion, from those which are to be punished by stoning or by the sword; and those by burning, by an a fortiori conclusion from those by stoning, etc. But such an a fortiori conclusion would be correct if all of the rabbis agreed that stoning is a more rigorous death than all the others. But there are some who hold that burning is more rigorous. Hence, according to them, the above a fortiori conclusion could not he drawn. Therefore said R. Jehudah: The seven queries of examination are inferred from [ibid. xiii. 15]: "And behold, if it be true--the thing is certain," which term is again repeated in ibid. xvii. 4. The words "certain" and "true," which are repeated, make four, and in the above three cases "searching" is mentioned seven times. These altogether make eleven, of which seven are to be taken for the seven queries, three of them for an analogy, and the one
which remains applies to that case of which the punishment is burning, in accordance with R. Simeon's theory that burning is more rigorous. And concerning the rabbis, who hold that stoning is more rigorous, it does not matter if a thing which is to be inferred by the drawing of an a fortiori conclusion is nevertheless mentioned in the Scripture.
R. Abuhu ridiculed this statement. Why not say that the superfluous word of the eleven in question is to teach that eight queries arc necessary in the examination? Eight queries! What is this? How many minutes are there in the hour? And so, also, a Boraitha states that queries were used. But such a question is correct, according to Abayi, who said that R. Mair maintains that one is not liable to err in the minutes at all, or in a few minutes. But according to him, after R. Jehudah, who maintains that one is liable to err in a half hour, and according to Rabha, who maintains that one can err even in a whole hour, what should be the eighth query? "What period of the jubilee year?" However, he who maintains that the eleventh word mentioned above is applied to something else, maintains that the latter query is not necessary, as they were already questioned: What period of the Sabbatic year?
"R. Jose said," etc. There is a Boraitha: R. Jose said to the sages: According to your theory, if a witness came before the court testifying, "Yesterday this man killed some one," may he be questioned in what period of the Sabbatic year, or in what year, month, and on what day of the month? And he was answered: The same as, according to your theory, that the queries should be: On what day, at what hour, and in what place? How is it if one testifies before the court, "This man has just killed a man"? Nevertheless the above queries are put to him: On what day, and at what hour? Hence, although not necessary, nevertheless he is to be questioned in accordance with the theory of R. Simeon b. Elazar, who maintains that the examination should be made severe, that the witnesses may lose heart in case they do not tell the truth. The same is the case with the other queries--they have to be put although it is not necessary. R Jose, however, may say: Usually the case is not tried just after the crime is committed, and therefore it is very seldom that the witness has to say: He killed him just now. However, one or a few days after the crime has been committed, it frequently happens that the case is tried.
"Do you know this man?" etc. The rabbis taught: The
query was: 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? Did he answer in spite of this? Did he commit the crime just after he was warned? And if the crime was idolatry: Which idol has he worshipped--the idol Peor or Markulis? Now did he worship it? Did he sacrifice an animal or incense to it, or pour out wine for it, or bow himself down before it?
Ula said: Whence do we deduce that the warning is prescribed biblically? From [Lev. xx. 17]: "And if a man take his sister, the daughter of his father, or the daughter of his mother, and see her nakedness." Is he guilty because he has seen it? It must therefore be said that it means he is aware of the crime (i.e., aware that she is his sister and that it is a crime). Hence the same is it with all other crimes--that he is not to be sentenced unless he was aware that it was a crime; and to be certain that he was aware, it can only be through warning. And as this verse speaks of a crime for which he is punished with "korath," which means through Heaven, to which warning is not applied, apply to it the punishment of stripes. The school of Hiskia deduces it from [Ex. xxi. 14]: "But if a man come presumptuously upon his neighbor, to slay him with guile," which means it was presumptuously done even after he was warned. The school of R. Ismael inferred this from [Num. xv. 33]: "And they that find him gathering sticks," which means that after they warned him he still gathered the sticks. And the school of Rabbi deduced this from [Deut. xxii. 24]: "Because he had done violence." 1 And all of them are needed; as if it were stated only in the case of his sister, as to which it was explained that it means the punishment of stripes, one might say that this applies only to stripes, but not to capital punishment. Therefore the cited verse in Ex. xxi. And if the two only were stated, one might say that it applies only to a kind of death which is more lenient than stoning, but to the punishment of stoning, which is very rigorous, it does not apply. Therefore all are needed.
The Boraitha states: Did he answer in spite of this? Whence do we know this? Said Rabha, and according to others Hiskia:
[paragraph continues] From [ibid. xvii. 6]: "Shall he that is worthy of death be put to death," which means, provided he answered, "I will do this even should it cause my death."
R. Hanan said: Witnesses who testified in case of a betrothed woman, if they be found collusive, are not to be put to death, as they may say: Our intention was to make it unlawful for her to be his wife only, but not that she should be put to death. But did they not warn her? It speaks of when they did not. But in such a case it is self-evident, as without warning she is not to be put to death. He speaks of a scholarly woman, and this is in accordance with R. Jose b. Jehudah, who said in the following Boraitha: Warning does not apply to a scholar, as the purpose of warning is only to recognize if the perpetrator of the crime did it while he was not aware that such was a crime, or he did it although he was aware; and as a scholar is aware of this crime, no warning is needed. And as they are not to be put to death, she also is exempted from death, as the Scripture requires that the collusive witnesses should be punished with the same punishment as the perpetrator of the crime, if it were true; and as they claim that they intended only to make it unlawful for her to be the wife of her betrothed, such a punishment is not applicable to the witnesses, and therefore she also is acquitted.
R. Hisda said: If one of the witnesses testifies that he slew him with a sword and the other says "with a razor," it is not admissible. But if one says that the murderer or the one murdered was dressed in white, and the other testifies, "He was in black," it is to be considered admissible. An objection was raised from the following: "It should exactly correspond," means that if one testifies that he slew him with a sword and the other with a razor, or if one says that he was dressed in black and the other that he was dressed in white, it does not? R. Hisda explains this Boraitha, that it means if both have testified that he strangled him With a muffler, and one said "It was a white one," and the other said "It was a black one." Come and hear another objection: If one says, "He wore black sandals," and the other says, "white ones," it is not considered corresponding? Also this Boraitha may be explained that he kicked him with his sandals and killed him. Come and hear another objection from our Mishna: It happened that Ben Sakkai examined the witnesses . . . of a certain fig tree? Said R. Jose: Do you want to contradict a man from Ben Sakkai's theory? He was of the opinion that there is no difference between. examination and query, and his
theory is individual. Who was Ben Sakkai? Shall we assume that it means Rabban Johanan ben Sakkai? Was he, then, among the Sanhedrin? Is there not a Boraitha that the age of R. Johanan was one hundred and twenty: the first forty years he was engaged in business, the middle forty he studied, and the last forty he taught? And there is another Boraitha: Forty years before the Temple was destroyed, the Sanhedrin was exiled from the chamber of the Temple to a store. And R. Itz'hak b. Abudimi explained that it means that from that time the Sanhedrin did not try cases of capital punishment. And there is also a Mishna which states that after the Temple was destroyed R. Johanan ben Sakkai enacted, etc. Hence we see that during forty years of his life there were no cases of capital punishment in the court of the Sanhedrin, and it cannot be that the examination in question was made by him. Therefore it must be said that this Ben Sakkai was some one else. And so it seems to be, as if it were R. Johanan b. Sakkai, how is it possible that Rabbi, the editor of the Mishnayoth, should name him Ben Sakkai only. But have we not learned in a Boraitha: It happened that R. Johanan b. Sakkai examined . . . the kind of figs? Therefore it must be said that at that time he was a disciple who was sitting in the row before the Sanhedrin, and he said something which was accepted by the Sanhedrin, and therefore it was established in his name. Hence while he was as yet a student he was named Ben Sakkai; and afterwards, when he began to teach, he was named Rabban Johanan. And the Mishna which mentioned him by the name of Ben Sakkai did so because when this happened he was still Ben Sakkai; the Boraitha, however, mentioned him by his name of the latter period.
"What is the difference between examination?" etc. How is to be understood: If two claim, etc.? Is it not self-evident that if the testimony holds good when one says, "I don't know," the same is the case also when two say so? Said R. Shesheth: This statement applies to the first part--namely, if the investigation shows that two of them are aware and the third says, "I don't know," even then their testimony is ignored; and it is in accordance with R. Aqiba, who compares three witnesses to two. As with two, if there is a difference in their testimony, the case is to be dismissed, the same is it with three, if even only one of them says, "I don't know." Said Rabba: How can such an explanation hold good? Does not the Mishna state that their testimony holds good? Therefore said he: It is to be explained
just in the reverse. Even concerning queries, if two witnesses are aware, but the third one says, "I don't know," their testimony holds good; and it is not in accordance with R Aqiba.
R. Kahana and R. Saphra used to learn the Tract Sanhedrin in the college of Rabba, and when Rami b. Hama met them, he questioned them: What new have you found in the Tract Sanhedrin, as taught by Rabba? And they rejoined: And how would it be if we had learned Tract Sanhedrin other than at Rabba's college--would you ask us for any news? It must be that there is some difficulty to you in this tract. Tell us, then, what it is. And he answered: The statement of the Mishna, which makes a difference between queries and examination--the reason for which is unknown to me. Are not both prescribed biblically? And they answered: What comparison is this? In the inquiry, if one said, "I don't know," their testimony is annulled, because the witnesses of such a testimony cannot be made collusive. And there is a rule that such a testimony is not to be taken into consideration; while in examination, if one said, "I don't know," their testimony still holds good. Hence they remain legal witnesses who can be made collusive. Rejoined he: If it is so, then you have brought with you very great news, Rejoined they: Because of the kindness of you, master, not to object to us, it may be named good news; but if you were to use your sagacity to object to us, we would have nothing to say.
"The intercalation of the month," etc. Until what date of the current month should the supposition of the ignorance of the intercalation of the last month hold good? Said R. Aha b. Hanina in the name of R. Assi, quoting R. Johanan. Until the greater part of the month is passed (i.e., e.g., if one says, "It was on the twentieth of the month," and the other says, "on the twenty-first," the supposition of the intercalation is not to be taken into consideration, and their testimony is annulled). Said Rabha: This we infer also from our Mishna, which states that, if one says "on the third," and the other "on the fifth," their testimony is ignored. And if the intercalation were taken into consideration, why not say that one of the witnesses was aware of two intercalations (i.e., from the last two months), and the other was not aware of it? Hence the reason must be, because one may not be aware of it during the first half of the month, but in the second half it is impossible that he has not heard of it. (Says the Gemara;) This, however, is not to be taken as a support, as it
may be said that one is not aware of it even during the second half of the month. And the reason why the Mishna does not say that he was not aware of two intercalations is because, usually, each intercalation was announced by blowing in the cornet and it could happen that one might overhear one blowing, but not two.
R. Aha b. Hanina said again in the name of the same authority., Until what time may the benediction of the moon be pronounced? Until it becomes more round. But until what date? R. Jacob b. Bibi in the name of R. Jehudah said: Until the seventh. And the sages of Nahardea said: Until the sixteenth. And the basis of both is R. Johanan's statement. They differ, however, in the explanation of it. According to R. Jehudah, his expression, "until it becomes more round," means when it is already half; and according to the others, R. Johanan means a full moon. Said R. Aha of Diphthi to Rabhina: Let one pronounce, after the time of the month's benediction has elapsed, the benediction of "Who is good, and does good to the world," And he answered: Do we then pronounce the benediction of "Blessed is He who judges true" when the moon diminishes, so that we shall pronounce the blessing, "Who is good," etc., after the full moon? But why not pronounce both? Because to a custom no such benedictions are used. The same said again in the name of the same authority: He who pronounces the benediction of the moon in time is considered as if he had received the glory of the Shekinah. And this is deduced from the analogy of the expression "zeh" mentioned in Ex. xiii. 2 and ibid. xv. 2.
In the school of R. Ismael it was taught. If Israel should have only the meritorious act of receiving the glory of their heavenly Father once a month, it would be sufficient. Said Abayi: Therefore we must pronounce the above benediction standing. Miramar and Mar Zutra used to stand shoulder to shoulder, pronouncing this benediction. Said R. Aha to R. Ashi: In the West they used to pronounce the benediction, "Blessed be He who renews the moon." And he answered: Such a blessing our women also pronounce. We, however, have adopted that which was composed by R. Jehudah: "Blessed be He who with His words has created the heavens, and with the breath of his mouth all their hosts, to whom he gave order and time, that they should not change His command; and they rejoice and are happy in doing the will of their creator. They work truthfully,
and what is done through them is truth." 1 And to the moon He commanded that she renew herself every month, and that she should he a crown and a guide to the people who were selected by Him from their birth. It is a symbol to the children of Israel that, finally, they also will be renewed like unto her (the moon), and they will praise their Creator, his name, and the glory of His kingdom. Blessed be Thou, Eternal, who dost renew the moon.
[R. Aha b. Hanina in the name of R. Assi, quoting R. Johanan, said: With whom can you fight a war of the Torah? With him who posesses bundles of Mishnayoth. And R. Joseph, who was a master in Mishnayoth, applied to himself (Prov. xiv. 4): "But the abundance of harvests is (only) through the strength of the ox." 2]
"If one says, 'in the second hour,'" etc. Said R. Shimi b. Ashi: This is only when they differ concerning the hour; but it one says, "It was before sunrise," and the other says, "It was after," their testimony is to be ignored. Is this not self-evident? even if one says, "It was before sunrise," and the other says, "At the sunrise." Is this also not self-evident? Lest one say that the one who says it was before the rising of the sun stood at such a place that he could not see it well, he comes to teach us that it is not so.
"The whole day," etc. The whole day only? Have we not learned in a Boraitha that if they accepted his reasons he remains with them all the time; but if his reasons were not accepted, he nevertheless remains there the whole day to the end that his descent should not be a disgrace to him? Said Abayi, Explain, then, our Mishna that he remains there the whole day if his reasons were not accepted.
"They do not drink wine," etc. And why not? Said R. Aha b. Hanina. Because of [Prov. xxxi. 4]: "Nor for rausnim (princes) strong drink." By "rausnim" is meant that those who occupy themselves with raus (secrets) of the world should not drink strong drinks.
"The opinion of the acquitter." But how is it if he does not accept it? Said R. Aha, and so also R. Johanan., They have to acquit him. Said R. Papa to Abayi: if so, why was he not acquitted previously when they (were still twenty-three)? And he answered: So said R. Johanan. Because they should not leave the court disputing, According to others the answer was . R. Jose of the following Boraitha holds with you. As there is no addition to the court of seventy-one, so there is no addition to the court of twenty-three (but if there is no majority for condemning, the defendant is freed).
The rabbis taught.. In civil cases the court may say: The case becomes old. But this cannot be said in criminal cases. What does this mean? If it means it becomes so old that it is hard to reach a conclusion, and that therefore it must be postponed, then the reverse should be the case. It means, in criminal cases they must postpone it, as perhaps they will find some defence, but not in civil. Said Huna b. Monoach in the name of Aha b. Ika. Reverse the Mishna. R. Ashi, however, said., The Mishna must not be reversed, as the expression "become old" means that the matter has received a thorough discussion and may not be further prolonged. An objection was raised from the following "The oldest of the judges may proclaim the case old. And this is correct according to the explanation of R. Ashi, as such a proclamation belongs to the oldest. But according to the first explanation, should the oldest blame himself? Nay, it would be a disgrace if some one else should say this to him. But if he himself proclaims this, there is no disgrace. According to others, it was questioned: How could the oldest praise himself, saying that the matter has become so clear that objection cannot be made? Is it not written [Prov. xxvii. 2]: "Let another man praise thee, and not thy own mouth." With a trial it is different, as it rests upon the shoulders of the oldest; for the Mishna states. After the conclusion, the oldest of the judges proclaims: "You, so and so, are acquitted"; or, "You, so and so, are guilty."Footnotes
119:1 The expression in Hebrew is al dbar asher enah, etc.--literally, "the thing which he has violated," etc.; and it should be written "because he has violated," without the term, "dbar" (thing). The Talmud takes the term "dbar," which means "thing," and which if punctuated "dibur" means "talk," to mean that he was told was a crime and he did not listen.
124:1 This benediction, which is copied in the prayer books, is not exact as in the original Talmud. And also not of that which was copied by Hananiel, but of that which was copied by Asher. And there is a great difference in the translation. We, however, have translated according to that of the Talmud, as so is our method.
124:2 It is unknown to us why the passage in the text is inserted here; it also quotes a verse from Prov. xxiv., which does not correspond. However, according to our method, we could not omit it.
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 EXECUTION BY STONING AND THE MANNER OF HERALDING. HOW THE CRIMINAL WAS URGED TO CONFESS BEFORE DEATH. THE STRIPPING OFF BEFORE DEATH OF THE DRESS OF A MALE AND OF A FEMALE. THE HANGING AFTER STONING, AND HOW IT WAS PERFORMED.
MISHNA I.: If the conclusion was to condemn, the guilty one was taken out immediately to be stoned. The place where he had to be executed was outside of the court, as it reads [Lev. xxiv. 13]: "Lead forth the blasphemer." One stood at the gate of the court with a flag in his hand, and one who rode on a horse stood so far distant that he could see the signal of the flag in case there were any. And then if one came before the court, saying, "I have something to say in his defence," the man raised up the flag, and he who was on horseback rushed and stopped the procession; and even if the guilty one himself says, "I have something new to say in my defence," he is to be brought back to the court, even four and five times, provided there is something in it which is worthy of consideration. And then, if the court finds that he is not guilty, he is acquitted, and if not, he is taken back to be stoned. And a herald goes before him, heralding: So and so, the son of so and so, is taken to be stoned, because he committed such and such a crime, and A and B are his witnesses. Every one who knows something in his defence may come and tell it before he is executed.
GEMARA: Was, then, the place of execution outside of the court only? Does not a Boraitha state that it was outside of all the three camps (when they were in the desert), and when they were in the cities the place of execution was outside of them? Yea! it is as you say, and the expression of the Mishna, "outside of the court," means that if it happened that the court took its place outside of the three camps or outside of the towns, even then the place of execution must be outside of the court, for the purpose that it should not appear that the court itself executed him, or for the purpose that there should be a procession,
to give time to one who might have some defence for the guilty.
Whence is this deduced? From that which the rabbis taught: It reads: "Lead out the blasphemer to without the camp," meaning out of all the three camps. But perhaps only out of one camp? There is an analogy of the expression "camp" which is mentioned here, with that in the case of the burning bullocks [ibid. iv. 20]: "And he shall carry forth the bullock to without the camp, and burn him"; and as there it means outside of all three camps, as explained elsewhere, the same is the case here. R. Papa, however, maintains that this is to be inferred from the following: Let us see. Moses sat in the camp of the Levites, and the Merciful One said to him: "Lead out the blasphemer to without the camp." Hence, out of the camp of the Levites. And thereafter it reads [ibid. xxiv. 23]: "And they led forth the blasphemer to without the camp, and they stoned him," which means out of the camp of the Israelites.
But is not the verse necessary in itself, to state that it was done as Moses commanded? This is written plainly farther on: "And the children of Israel did as the Lord had commanded Moses." But to what purpose is it written, "they have stoned him with stones?" It is already written they did it, and it is self-evident that they stoned him? It is needed, as we have learned in the following Boraitha: It reads, "they stoned him with a stone," which means him--his body--but not his garments; i.e., they had to undress him before the execution. "With a stone" means that if he dies by the first stone no others are needed. In Num. xv, 35 it reads: "With stones," in the plural. And both expressions are needed, as if it were stated only in the singular, one might say that one stone should be thrown, and should it not cause death, no other stones must be thrown; and if it were mentioned in the plural only, one might say that many stones are needed to start with. Therefore both are stated. 1
But how could R. Papa differ from the Boraitha mentioned above? Does not the Tana state it was said so? Hence the analogy of expression was traditional, to which an Amora had no right to object. The Tana meant to say that if there were not a verse it could be inferred from the analogy; but inasmuch as there is a verse, the analogy is not necessary. R. Ashi said
that from the same cited verse this is inferred. Let us see! Moses was in the camp of the Levites, and the Merciful One commanded him: "Lead out the blasphemer," etc.--meaning from the camp of the Levites. "Out of the camp," means the camp of Israel.
"One stands with flag," etc. R. Huna said: "I am certain that the stone with which the executed was stoned, as well as the tree upon which he was hanged, the sword with which he was slain, and also the cloth with which he was choked must be at the expense of the congregation. However, I doubt who had to bear the cost of the flag and the horse mentioned in the Mishna. The defendant, as they are provided only for his sake, or the congregation, because they are obliged to do all they can to save him? I am in doubt also as to that which was said by R. Hyya to R. Ashi in the name of R. Hisda. When one was going to be killed, they used to put a grain of frankincense in a goblet of wine and gave him to drink, so that he should become dazed. As it is written [Prov. xxxi. 6]: "Give strong drink unto him that is ready to perish, and wine unto those who have an embittered soul." And there is a Boraitha that the wine and the frankincense were donated by the respectable women of Jerusalem. Now, if it happened that they were not donated, who must bear the expense? Says the Gemara concerning the latter: Common sense dictates, at the expense of the congregation, as the verse reads "give," which means the congregation.
R. Aha b. Huna questioned R. Shesheth: How would it be if one of the disciples said, "I have something to say in behalf of the defendant," and thereafter he became dumb? Gestured R. Shesheth, saying: Then we would have to consider that there was some one at the other end of the world who had some defence for him. But, after all, it was said by the disciple that he had a defence, and when he became dumb, would it not be right for the court to investigate again-perhaps they would find out what he meant? Come and hear that which was said above by R. Jose b. Hanina: If one of the disciples who defended him at the time of the discussion dies, it will be seen at the time of the conclusion whether he is still alive and defends him. Hence we see that if he has already defended, and he says: "I have something to say in his defence," and he becomes dumb before he gives his reasons, it is not to be taken into consideration. Rejoined R. Aha: Notwithstanding that it is certain to you that R. Jose meant when his defence was already made by him, but
not otherwise, it is still a question to me. For perhaps R. Jose said so because it is usual, if one has something to say, that he says it immediately; but if it happened that he became dumb before telling the reasons, it might be that even R. Jose would admit that the court must look the matter up again.
"Which is worthy of consideration," etc. Does the Mishna mean that for the first two times it must be examined while he is yet at his place--if there is something, etc.? Have we not learned in a Boraitha, that the first two times he is to be brought back to the court, even if he does not give a good reason; and only at the third time it is to be examined if there is something in his defence before he is taken back? Said R. Papa: I interpret it that the Mishna means after the second time. But who decides whether it is a good reason or not? Said Abayi: After the second time the court appoints a pair of the rabbis to follow him, and if he has something to say, they examine him and decide if there is a good reason to take him back or not. But why should not the same rabbis be appointed previously, so that even at the first time he should not be brought back unless the rabbis found a good reason? Because he is affrighted he cannot say at the beginning all he wishes to say.
"Such and such a crime," etc. Said Abayi: "The herald must also proclaim the day, the hour, and the place, for the purpose that perhaps there will be found some people who know that the witnesses were not in that place on that day or at that hour, and they will come to make them collusive.
"The herald goes before him," etc. It means only when he is already sentenced, but not before. R. Jehoshua b. Lev! said. Him who repents and mortifies his passions after they have
taken a firm hold of him, and he confesses before Heaven, the verse considers him as if he should glorify the Holy One, blessed be He, in both this world and the world to come. As it is written [Ps. l. 23]: "Whoso offereth thanksgiving, glorifieth me." 1 The same said again: When the Temple was in existence, if one brought a burnt-offering the reward for such was with him; a meat-offering, the reward of such was with him: but him who is modest, the verse considers him as if he should sacrifice all the sacrifices mentioned in the Scripture. As it reads [ibid. li. 19]: "The sacrifices of God are a broken
spirit." Furthermore, his praying is never despised, as it reads farther on: "A broken and a contrite heart, O God, wilt thou not despise."
MISHNA II.: When he (the guilty one) was far from the place of execution--a distance of ten ells--he was told to confess, as so is the custom, that all who are to be executed should confess, and they who do so have a share in the world to come. And so do we find with Achan, to whom Joshua said: "My son, give . . . and make confession." And [ibid., ibid. 20] Achan answered Jehoshua: "Truly, I have sinned, and thus and thus have I done." And whence do we know that he was atoned after his confession? From [ibid., ibid. 25]: "And Joshua said, How hast thou troubled us! So shall the Lord trouble thee this day." This day--but not in the world to come. However, if the guilty one does not know how to confess, he is told to say. My death shall atone for all my sins. R. Jehudah said: If he knew that he was innocent of this crime, he might say. My death shall atone for all my sins, except this one. And R. Jehudah was answered.. If it were so, all those who were to be executed would say so, to the end that they should be innocent in the eyes of the people.
The rabbis taught: In the verse cited--in what Jehoshua said to Achan--the term "na" is used, and "na" means "I pray." At the time the Holy One, blessed be He, saw [Joshua, vii. ii]: "Israel hath sinned," Jehoshua said before Him: "Lord of the Universe, who has sinned?" To which He answered. "Am I a talebarer, to tell you who. Go and draw lots." And he did so, and the lot fell on Achan. And he said to him. Joshua, do you accuse me on account of a lot? Thou and Elazar, who are the greatest of this generation, if I were to draw lots between thee and him, to one of you the lot would fall. And Jehoshua rejoined: I pray thee, do not discredit the decision of the lots, as the land of Israel will be divided by lots. As it is written [Num. xxvi. 55]: "Through the lot shall the land be divided." "Give confession!" Said Rabhina: He bribes him with words. We want of you only the confession. Give the confession, and you will be free: And Achan answered Jehoshua, and said: "Truly, I have indeed sinned against the Lord the God of Israel, and thus and thus have I done." Said R. Assi in the name of R. Hanina: Infer from this that Achan had committed a similar crime trice--twice in the days of Moses and once in the day of Jehoshua. As it reads: "And thus and thus I have done."
R. Johanan in the name of R. Elazar b. Simeon said: Five times--four in the time of Moses and once in the time of Jehoshua. As it reads. "I have sinned, and thus and thus I have done." But why was he not punished until the last crime? Said R. Johanan in the name of the same authority. Because Israel was not punished for crimes which were committed secretly until they passed the Jordan.
On this point the Tanaim differ. It is written [Deut. xxix. 28]: "The secret things belong unto the Lord our God, but those things which are publicly known belong unto us and to our children for ever, to do all the words of this law." Why are the words, "unto us and to our children" and the Ayin of the "ad" pointed? To teach that they were not punished for secret crimes until they passed the Jordan. So is the decree of R. Jehudah. Said to him R. Nehemiah. Where is the plain which it is written that they were punished for secret crimes at any time? Is it not written in the cited verse, "forever?" Say, then, as they were not punished for secret crimes, so they were not punished for crimes which were done publicly until they passed the Jordan. But why was Achan punished--his crime was in secret? Because his wife and children were aware of it. "Israel hath sinned!" Said R. Abbah b. Zabda: Although he had sinned he was still called an Israelite. And said R. Abbah: This is what people say: "A myrtle which stands between thorns is still a myrtle," and so it is named. In Joshua, vii. 11, five times is "gam" (also) written in the cited verse: Infer from this that he had transgressed all that is written in the five books of Moses.
The Exilarch said to R. Huna: It reads [ibid., ibid. 24]: "And Joshua took Achan the son of Zerach, and the silver, and the mantle, and the wedge of gold, and his sons, and his daughters, and his ox, and his ass, and his sheep, and his tent, and all that he had, and all Israel were with him, and they brought them up unto the valley of Achor." Yea! he had sinned; but wherein had his sons and daughters sinned? And he answered: According to your theory, what had all Israel to do with this? Hence it was only to terrify them. The same was it with his sons and daughters. It reads farther on: "And all Israel burned them with fire and stoned them with stones." 1 Were they, then, punished
with both? Said Rabhina: That which was fit for burning, e.g., silver, gold, and garments, was burned, and those which were fit for stoning, e.g., oxen and other cattle--were stoned. It reads [ibid., ibid. 21]: "I saw among the spoil a handsome Babylonish mantle, and two hundred shekels of silver." Rabh said: A silk mantle; and Samuel said: A σαραβαλλα. It reads farther on [ibid., ibid. 23]: "And as they laid them out before the Lord." Said R. Na'hman: Joshua cast them down before the Lord, saying: Lord of the Universe, were these little things worth that the majority of the Sanhedrin should be killed on account of them? It reads [ibid., ibid., 5]: "And the men of Ai smote of them about thirty and six men." There is a Boraitha: Thirty-six men were slain. So said R. Jehudah. Said R. Nehemiah, to him: "Is it, then, written thirty-six? It reads, "about," and it means that only Joer b. Menasseh, who was equal to the majority of the Sanhedrin, was put to death.
R. Na'hman said in the name of Rabh: It reads [Prov. xviii. 23]: "The poor speaketh entreatingly, but the rich answereth roughly." "The poor speaketh," means Moses; and "the rich," etc., means Joshua: But why? Is it because he cast them down before the Lord and said: "Little things," etc.? Did not Pinchas do the same? As it reads [Ps. cvi. 30]: "Then stood up Phinehas," etc. It ought to be written, "vayitpalel," which means, "and he prayed," instead of "vayiphalel (debated). Infer from this that he had debated with his Creator. He cast them before the Lord, saying: "Lord of the Universe, were they, then, worthy that on account of them twenty-four thousand persons of Israel should fall?"--as it reads [Num. xxv. 9]. So said R. Elazar. And if because of [Joshua, vii. 7]: "Wherefore hast thou caused this people to pass over the Jordan?"--did not Moses say similar to this [Ex. v. 22]: "Wherefore hast thou let so much evil come upon this people?" Therefore it must be said, because Joshua said at the end of the above-cited verse (7): "Would that we had been content, and dwelt on the other side of the Jordan." It reads [ibid., ibid. 10]: "Get the cup," etc. R. Shilla lectured: The Holy One, blessed be He, said to him: Thou thyself hast transgressed more than Israel, as I have commanded [Deut. xxvii. 4]: "And it shall be so, as soon as ye are gone above the Jordan, that ye shall set up these stones," and ye went a distance of sixty miles before ye did this.
After Shilla went away, Rabh appointed an interpreter and lectured: It reads [Joshua, xi. 15]: "As the Lord had commanded
[paragraph continues] Moses and his servant, so did Moses command Joshua, and so did Joshua; he left nothing undone of all that the Lord commanded Moses." But why is it written, "Get thee up?" It means that the Lord said to him: "Thou thyself hast caused all the evils, because thou didst excommunicate the goods of Jericho, and no crime would have been committed if thou hadst not done so." And this is what is written [ibid. viii. 2]: "Only its spoil and its cattle shall ye take for booty unto yourselves." It reads [ibid. v. 13, 14]: "And it came to pass, when Joshua was by Jericho . . . And he said, No; for as a captain of the host of the Lord, am I now come. And Joshua fell on his face to the earth," etc. How could Joshua do so? Did not R. Johanan say: One must not greet a stranger, with peace in the middle of the night, as perhaps he is a demon, and so much the more must he not bow before him? There it was different, as he said: I am a captain of the Lord. But perhaps he lied? We have a tradition that even the demons do not pronounce the name of the Lord in vain. And then the angel said to him: "Yesterday you abolished the presenting of the daily eve-offering, and to-day you abolished the studying of the law." And to the question, "For which of the two transgressions hast thou come?" he answered: For that of to-day. Hence it reads [ibid. viii. 18]: "And Joshua went that night into the midst of the valley." And R. Johanan said: Infer from this that he had occupied himself the whole night with the deepness of Halakhoth. 1 Samuel b. Unya in the name of Rabh. said: The study of the Torah is greater than the sacrifices of the daily offerings, as the angel said: For that of to-day.
Abayi said to R. Dimi: It reads [Prov. xxv.]: "Do not proceed to a contest hastily, lest (thou know not) what thou wilt have to do at its end, when thy neighbor has put thee to confusion. Carry on thy cause with thy neighbor; but lay not open the secret of another." How do the people of the West explain this passage? And he answered "At the time the Holy One, blessed be He, said to Ezekiel [Ezek. xvi. 3]: "And thou shalt say . . . thy father was an Emorite and thy mother was a Hittite," the arguing spirit (Gabriel) before the Holy One, blessed be He, said: "Lord of the Universe, if Abraham and Sarah should come and stand before thee, and thou saidst to them this, they should become ashamed." "Carry on thy cause with thy
neighbor; but lay not open the secret of another." Had he, then (Gabriel) a right to say such a thing? Yea! As R. Jose b. Hanina said: Gabriel has three names--Piskon, Aitmun, Zigoron. Piskon means that he argues before Heaven for Israel's sake; Aitmun means that he restrains the sin of Israel; Zigoron means that when he concludes his defence for Israel and it does not have any effect, none of the other angels would attempt any further defence, being certain that none would accomplish anything if Gabriel had not done so.
It reads [Job xxxvi. 19]: "Hast thou prepared thy prayer before thy trouble came?" 1 said R. Elazar: One should always proceed with prayer before trouble comes. As if Abraham had not proceeded with his prayer until the trouble between Bith-El and the city of Ai, not one of Israel would have remained alive when the trouble happened at the city of Ai. Resh Lakish said: He who strengthens himself with prayer on the face of the earth has no enemies on the face of Heaven. R. Johanan said: One should always pray mercy, that all shall support his strength to pray, and he should not have enemies to accuse him in Heaven.
"Atoned after confession," etc. The rabbis taught: Whence do we know that his confession has made atonement for him from Joshua: "How hast thou troubled us! so shall the Lord trouble thee this day." This day, but not in the world to come. And it is also written [I Chron. ii. 6]: "And the sons of Zerach: Zimri and Ethan, and Heman and Calcol and Dara, in all five." To what purpose is it written "in all five"? It means all five have a share in the world to come. Here it reads "Zimri," and in Joshua he is named Achan. Rabh and Samuel--according to one, his name was Akhan. And why is he named Zimri? Because his acts were according to Zimri of the Pentateuch. And according to the other his name was Zimri. And why is he named Akhan (circle)? Because he caused the sins of Israel to rest upon them like a circle.
"To the end that they should be innocent," etc. But what harm could he do, if he should say so? He could cast suspicion on the court and the witnesses. The rabbis taught: 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. And if I am innocent of this crime, my death shall atone for all
my sins, and I have nothing against the court and all Israel; but to the witnesses I do not surrender my innocence, and they shall not be atoned for, for ever. When the sages heard this, they said: It is impossible to bring him back, as the sentence is already rendered; but be shall be executed, and the collar shall rest upon the neck of the witnesses. Is this not self-evident--for who could trust such a man? The case was, that the witnesses retracted from their first statement. But even then, what did it amount to? Is there not a rule that after testimony has been made and accepted no retraction can take place? The case was, that they gave a good reason for their retraction, and nevertheless they were not listened to. (So did it happen with the contractor Bar Mayon.) 1
MISHNA III.: When he came to four ells from the place of execution, he was stripped of his garments. If a male, he was covered in front; and if a female, she was covered on both sides. So said R. Jehudah. The sages, however, say: A male was stoned while naked, but not a female.
GEMARA: The rabbis taught: If it was a male, he was covered a little in front, but a female was covered in the greater part of the front and back. So said R. Jehudah. But the sages say: Only a male was stoned while naked, but not a female. And what is their reason? [Lev. xxiv. 14]: "And all the congregation shall stone him." And what does it mean? It cannot be said "him," but not "her" (a female), as it reads [Deut. xvii. 5]: "Then shalt thou bring forth that man or that woman," and therefore it must be said, it means him without his garments, but her with her garments. Hence he is to be stoned while naked, but not a female. R. Na'hman in the name of Rabba b. Abuhu said: (The reason why a woman was not stripped is because it reads [Lev. xix. 18]: "Thou shalt love thy neighbor as thyself," which means, in case he is sentenced to death, select for him a decent death, that he shall not be disgraced. 1)
MISHNA IV.: The stoning-place was two heights of a man. One of the witnesses pushed him on his thighs (that he should fall with the back to the surface), but if he fell face down, he had to be turned over. If he died from the effects of the first fall, nothing more was to be done. If not, the second witness took a stone and thrust it against his heart. If he died, nothing more was to be done; but if not, all who were standing by had to throw stones on him. Thus [Deut. xvii. 7]: "The hand of the witnesses shall be first upon him, to put him to death, and the hand of all the people at the last."
GEMARA: There is a Boraitha: With his own height he was
thrown down from the height of three men. Was such a height necessary? Does not a Mishna in First Gate state that as a pit which causes death is of ten spans, so all other heights which may cause death must be no less than ten spans. Hence the height of ten spans is sufficient? Said R. Na'hman in the name of Rabba b. Abuhu: From the above-cited verse [Lev. xix.], it is inferred that a decent death must be selected for him. If so, why not from a still higher place? Because his body would be mangled.
"One of the witnesses pushed him," etc. The rabbis taught: Whence do we know that he must be pushed? From [Ex. xix. 13]: "But he shall surely be stoned, or shot through." From the term "yorauh yeyoreh," which means pushing. And whence do we know that he must be stoned? From the term "soqueul." And whence do we know with both stoning and pushing? Therefore it reads "soquoul yisoquel auyorauh yeyoreh." And whence do we know that when he died from pushing nothing more was to be done? From "au," which means "or." And because the term is future, we infer that the same shall be in later generations.
"Took a stone," etc. Took! Have we not learned in a Boraitha: R. Simeon b. Elazar said: There was a heavy stone, which two men had to carry, and this he took and thrust against his heart, and if he died he fulfilled his duty. (Hence if two men had to carry it, it could not be taken by one.) He lifted it up with the support of his comrade, and then he alone threw it, that the blow should be stronger.
"To throw stones," etc. Is there not a Boraitha: It never happened that he did not die from the hand of the witnesses, so that one should need to throw another stone? Does, then, the Mishna state that it was so done? It states, "should it be necessary."
The master said: "There was a stone," etc. But does not a Boraitha state that the stone with which he was stoned, as well as the tree upon which he was hanged, or the sword with which he was killed, or the muffler with which he was choked, must be buried with him? It means that before it was buried they prepared another like it, which remained. But is there not another Boraitha which states that the above things were not buried with the one executed? Said R. Papa: It does not mean that it was buried just with him, but near him, at a distance of four ells.
Samuel said: If before the execution the hands of the witnesses were cut off, he becomes free from death, because the commandment, "the hand of the witnesses should be on him first," cannot be fulfilled. But if so, should witnesses who have no hands be disqualified? There it is different, as the verse reads, "the hand of the witnesses," which means that when they testified they had hands. An objection was raised from the following: Every one, of whom two witnesses testify that he was sentenced at such and such a court, and A and B were his witnesses, he is to be put to death. Hence we see that in any case he is executed? Samuel may explain the Boraitha that it means that the witnesses themselves testified that they were witnesses in the former court. But is it indeed needed that it should be done as the verse dictates? Is there not a Boraitha: It reads [Num. xxxv. 21]: "He that smote him shall surely be put to death; (for) he is a murderer." We know that one is to be put to death by that which applies to him; but whence do we know that if it is impossible that he should be killed by that which applies to him, he is nevertheless to be executed by any death which is possible? From the verse cited, "he shall surely die," which means in any case? That case is different, as it reads, "he shall surely die." But let all other cases be inferred from it? Because the verse cited, which speaks of a murder, and the verse which speaks of the avenger of the one murdered, are two verses which dictate one and the same thing (death), and there is a rule that from two such verses nothing is to be inferred. What verse of the avenger is meant? [Ibid., ibid., 19]: "The avenger of the blood himself shall slay." Infer from this that it is a meritorious aft for the avenger to do so himself. And whence do we know that if the murdered one had none such, that the court is obliged to appoint one? From the end of the verse, "when he meeteth him, shall he slay him?" Said Mar the elder b. R. Hisda to R. Ashi: How can one say that it is not needed as the verse dictates? Does not Mishna 5 in Chapter viii. of this tract state that it must be done just as the verse dictates, and it is deduced from the Scripture. With the verse cited in the Mishna in question it is different, as that verse is altogether superfluous, and is written only so that it should be done just as it dictates. But does not a Boraitha say in the eleventh chapter, concerning a misled town, that if there was not a main street in this city, according to R. Ismael such is not to be recognized as a misled town, as the verse dictates, "You
shall gather all its goods in the main street," and according to R. Aqiba a main street should be made? We see, then, that they differ only if such should be made or not, but both agree that it must be done just as the verse dictates? In this case Tanaim differ, as a Mishna in Tract Negaim (xiv. 9) states. If he (referring to Lev. xiv. 25) lacked the thumbs of his right hand and foot, or the right ear, he can never be purified. R. Eliezer, however, said: It may be done at the place they are lacking. And R. Simeon said: It shall be placed on the left one.
MISHNA V.: All who are stoned are also hanged. So is the decree of R. Eliezer. The sages, however said: Only a blasphemer and an idolater are hanged (but no others). A male is hanged with his face toward the people, and a female with her face toward a tree. So R. Eliezer. The sages, however, say: A male is hanged, but not a female. Said R. Eliezer to them: Did not Simeon b. Shetha hang females in the city of Askalon? And he was answered: He hanged eighty women in one day, and there is a rule that even two must not be sentenced in one day, if the punishment is with the same death. (Hence Simeon's act was only temporary, because of the need of that time, and nothing is to be inferred from it.)
GEMARA: The rabbis taught: It reads [Deut. xxi. 22]: "And he be put to death, and thou hang him on a tree." And lest one say: "All who are put to death must also be hanged," therefore it is written in the second verse [ibid.., ibid. 23]: "For he that is hanged is a dishonor of God" (a blasphemer), and as a blasphemer is to be stoned, the same is the case with all others who are to be stoned. So R. Eliezer. The sages, however, say: that as with a blasphemer who has denied the cardinal principle of our faith (i.e., he does not believe in God), the same is the case with an idolater who denies the might of God, but all others who are stoned are not to be hanged. And what is the point of their difference? According to the rabbis, when there is a general expression and an explicit statement, we infer from the general expression and from the explicit statement which comes after it. And R. Eliezer infers from additions and exclusions. According to the rabbis, "He should be put to death and hanged," is a general expression; "The dishonor of God--hangs," is an explicit statement. And if they were in one verse it might be said, that the general expression applies only to that which is in the explicit statement; viz., only those which are mentioned in that case, but no others. But as they
are in two verses, we infer from these an idolater, who is equal to a blasphemer in all particulars. And according to R. Eliezer, "He shall be put to death and hanged," is considered an addition; "the dishonor of God" is considered an exclusion. And if they were in one verse, we would add an idolater only; but, seeing that they are in two verses, all the cases of stoning are to be added.
"A male is to be hanged," etc. What is the reason of the rabbis? It reads, "thou hang him," which means him, but not her. And according to R. Eliezer, it means him, without his garments; and the rabbis also hold this theory, But as it reads, "And if a man has committed," etc., it means a man, but not a woman. And R. Eliezer infers from the word "man," to exclude a stubborn and rebellious son. But is there not a Boraitha which states that, according to R. Eliezer, even a stubborn and rebellious son is stoned and hanged? Therefore said R. Na'hman b. Itz'hak: R. Eliezer infers from this to include a stubborn son, and his reason is this: It reads, "If a man," meaning a man, but not a son; "committed a sin," means he is put to death, because he has already committed a sin; but a stubborn son is put to death, not because he has sinned, but because in the future he will sin. And this is an exclusion after an exclusion, of which the rule is, that it comes to add.
"Said R. Eliezer to them," etc. Said R. Hisda: Two must not be judged on the same day, provided there are two kinds of death; but if there is only one kind, two may be judged. But was not the case of Simeon b. Shetha one kind of death? And nevertheless it was said to him: Two cases of capital punishment must not be judged on one day. Therefore if it was taught in the name of R. Hisda, it was thus: Provided there is one kind of death applicable to two kinds--namely, for two separate crimes; but if there was only one crime, and only one kind of death, it may. R. Ada b. Ahabah objected from the following: Two must not be judged in one day, even in the case of adultery--the two adulterers, he and she? R. Hisda explained this Boraitha, that it speaks of a daughter of a priest, and her paramour, in which case, according to the law, she is to be burned Hence there are two different kinds of and he is to be stoned. death. There is a Boraitha: R. Eliezer b. Jacob said: I have heard that the court may punish with stripes and even capital punishment, not in accordance with the biblical law--not with the intention to violate the law, but to make a safeguard for it.
[paragraph continues] So it happened with one who rode on a horse on Sabbath, at the time Palestine was under the Greeks, and this man was brought before the court, and stoned, not because he deserved such a punishment, but because it was a necessity of that time, to warn others. And it also happened that one had connection with his wife under a fig tree, and he also was brought to the court, and was punished with stripes, not because he deserved such a punishment, but because of the necessity of that time.
MISHNA VI.: How was one hanged? The beam was put in the earth, and it was fastened at the top, and he tied the hands of the culprit one upon the other, and hung him up. R. Jose said: The beam was not put in the earth, but the top of it was supported by the wall, and he hung him up as the butchers do, and he took him off immediately. And should he leave him over night, he transgressed a negative commandment, as it reads [Deut. xxi. 23]: "Thou shalt not leave his corpse on the tree over night, but thou shalt surely bury him on that day (for he that is hanged) is a dishonor of God," etc. How so? "Why is this man hanged?" "He is a blasphemer." Hence the name of Heaven is violated. [Said R. Mair: When a man is in trouble, in what language does the Shekinah lament over him? Qalleni meiraushi, qalleni miz'raay. 1 Now, if the Omnipotent grieves over the blood of the wicked which was shed, so much the more about the blood of the upright!] And not only of him who was executed it was said that he should not remain over night? But even every one who leaves unburied his corpse over night transgresses the negative commandment. However, if he left it over night for the sake of its honor, as for instance to prepare for it a coffin or shroud, he does not transgress.
The one executed was not buried in the cemetery of his parents, but two cemeteries were prepared by the court, one
for those who were slain with a sword and choked, and one for those who were stoned and burned. After the flesh of the corpse was consumed, the relatives gathered the bones and buried them in their right place. And the relatives came, and greeted in peace the judges, as well as the witnesses, to show they had nothing in their heart against them, as the judgment was just. The relatives also did not lament for him loudly, but mourned in their heart.
GEMARA: The rabbis taught: If the verse read, "If a man committed a sin, he shall be hanged," we would say that he should be hanged until death occurs, as the government does; but it reads, "He shall be put to death and hanged," which means he shall be put to death and thereafter hanged. How was it done? They kept him till near sunset, condemned him, killed him, and then hanged him; one hangs him up, and the other immediately loosens the knot, as his hanging was only to fulfil the commandment.
The rabbis taught: It is written, "on a tree," from which ought to be inferred that it makes no difference if the tree was still attached to the ground or not. Therefore is it written, "Thou shalt surely bury him," from which it is to be understood that everything should be already prepared for the burying. And if the tree were still attached to the ground, it could not be considered prepared, as the tree was not as yet cut off. R. Jose, however, maintains that this verse excludes also a beam which is put in the ground, as it is not considered prepared, for the tree was not as yet taken out from the ground. But the sages say that the taking out is not to be considered.
"Why is he hanged? Because he is a blasphemer." There is a Boraitha: R. Mair used to say: There is a parable. To what can this be compared? To two twin brothers, one of whom was selected for a king and the other became a robber, and was hanged at the command of the king. Now, people who saw him hanged would say that the king was hanged, and therefore the king commanded the corpse to be taken off (i.e., as man was created in the image of God).
"And not only for him who was executed," etc. R. Johanan in the name of R. Simeon b. Jochi said: Where is to be found an allusion to this in the Torah? In "thou shalt surely bury him." King Sabur questioned R. Hama: Whence do you deduce from the Torah that one must be buried? And the latter remained silent--without answer. Said R. Aha b. Jacob: The
world is transferred into the hands of fools. Why did he not answer from the above-cited verse? Because the above is to be explained that it means a coffin and shroud are to be prepared for him. But let him say: Because all the upright were buried. This is only a custom, and not a command of the Torah. And why not say: Because the Holy One, blessed be He, buried Moses? It may be said that this also was not to change the custom. Come and hear [I Kings, xiv. 13]: "And all Israel shall mourn for him, and bury him." This, also, was not to change the custom. But is it not written [Jer. xvi. 4]: "They shall not be lamented for; nor shall they be buried"? Them Jeremiah cautioned, that with them should be a change of custom.
The schoolmen propounded a question: Is the burying because the corpse shall become disgraced if not buried, or is it because of atonement? And what is the difference? If one says, "I do not wish to be buried," if it is because of the disgrace, he must not be listened to; but if it is for atonement, he should be listened to, as he says, "I don't want any atonement." Come and hear! "Because all the upright were buried." And if the reason should be for atonement, do, then, the upright need atonement? Yea, as it reads [Eccl. vii. 20]: "For no man is so righteous upon earth that he should do always good, and never sin." Come and hear the above-cited verse about Jeroboam, in which it reads that only he should be buried. Now, if the reason is atonement, why should not the others also be buried and atoned? He who was upright ought to be buried and atoned, the others who were wicked were not worthy to be atoned. The same is the case with them who were cautioned by Jeremiah that they should not be buried, because they were not worthy of atonement.
The schoolmen propounded another question: Is the lamentation an honor for the living or for the deceased? And what is the difference? If, e.g., one says, "I do not wish to be lamented," if it is an honor for the deceased only, he may be listened to; and if for the living, he may not. Or, on the other hand, if his heirs do not want to pay the mourner, if it is an honor for the deceased, they may be compelled to pay; and if it is for the living, they may not. Come and hear [Gen. xxiii. 2]: "And Abraham came to mourn for Sarah, and to weep for her." Now, if this were only an honor for the living, should the body of Sarah have been kept till Abraham came, for his
honor? Nay! Sarah herself was pleased that Abraham should be honored because of her. Come and hear! "All Israel shall mourn for him." Now, if it is for the honor of the living, were, then, the people of Jeroboam worthy to be honored? The upright are pleased that any human being should be honored on their account. But is it not written that they shall not be mourned for and buried? The righteous do not wish that they shall be honored because of the wicked. Come and hear Jeremiah [xxiv. 5]: "In peace shalt thou die; and as burnings were made for thy fathers, the former kings who were before thee so shall they make burnings for thee; and, 'Ah Lord,' shall they lament for thee." Now, if it is to the honor of the living, what good can this do to Zedekiah? The prophet said to him thus: Israel shall be honored because of thee as they were honored because of thy parents. Come and hear! It is said elsewhere [Ps. xv. 4]: "The despicable is despised," meaning King Hezekiah, who bore the remains of his father on a bed of ropes. Now, if it is for the honor of the living, why did Hezekiah do so? For the purpose that his father should have an atonement. But has he a right to invalidate the honor of Israel because of the atonement of his father? The people themselves were pleased to relinquish their honor, because of the atonement of Achaz. Come and hear what was said by Rabbi in his will: "Ye shall not lament me in the small cities, but in the large ones." Now, if it is for the honor of the living, why such a will? He thought: Let the people be more honored because of me. Come and hear the statement in our Mishna: If he left it over night for its honor, to prepare for it a coffin and shroud, he does not transgress. Hence we see it is to the honor of the dead? Nay, "for his honor" means for the honor of the living. But has one the right to leave the corpse over night, for the sake of his own honor? Yea, as the commandment not to let the corpse hang was because of the disgrace; but if it is not disgraced, the honor of the living is to be considered. Come and hear another Boraitha: If he left him over night for his honor, that his friends in other cities should hear of his death or bring for him the lamenting-women, or prepare for him a coffin and a shroud, he does not transgress the negative commandment: for all he does is for the honor of the dead? It means to say that all he does for the sake of his own honor is not considered a disgrace for the dead. Come and hear another Boraitha: R. Nathan said: It is a good sign for one deceased if he was punished after his
death; namely, if he was not lamented, not buried properly, or a wild beast seized upon his corpse, or if, while carrying him to burial, rain wet the corpse. All these are good signs that it was done for his atonement. Hence we see that all these are to be done for the honor of the dead. Infer from this that so it is.
"But two cemeteries," etc. And why so? Because a wicked person must not be buried with an upright one. As R. Ahha b. Hanina said: "Whence do we know that a wicked person must not be buried with an upright? From [II Kings, xiii. 22]: "And it came to pass, as they were burying a man, that, behold, they saw the hand; and they cast down the man into the sepulchre of Elisha; and as the man came and touched the bones of Elisha, he revived, and rose up on his feet." Said R. Papa to him: But perhaps this was done to fulfil what is mentioned [ibid. ii. 9]: "Let there be, I pray thee, a double portion of thy spirit upon me." And as Elijahu restored only one man, so did Elisha also restore one while he was alive; and the second was restored after his death. And he answered: If it were so, why, then, does a Boraitha state that the restored only stood upon his feet, but did not go home? And if it were for the purpose said above, he would remain alive. But if, as you say, Elijahu's promise was not fulfilled? As it was said by R. Johanan: This was fulfilled with the cure of Na'hman from his leprosy, for leprosy is equal to death. As it reads [Num. xii. 12.]: "Let her not be as a dead-born child." And as it is prohibited to bury an upright person with a wicked, so also it is not allowed to bury a lesser wicked with a greater one. But if so, there should have been four cemeteries. The two cemeteries were traditional. 1
The rabbis taught: They who are put to death by the government,
their estates belong to the government; and they who, are killed by the court, their estates belong to their heirs. R. Jehudah, however, maintains that their estates belong to the heirs even when they are killed by the government. Said the sages to him: Is it not written [I Kings, xxi. 16]: "And it came to pass, when Achab heard that Naboth was dead, that Achab rose up to go down to the vineyard of Naboth, the Yizreelite, to inherit it"? And he answered: Achab was his brother's son. and was a legal heir. But had not Naboth many sons? Rejoined R. Jehudah: He slew him and his sons. As it reads [II Kings, ix. 26]: "Surely I have seen yesterday the blood of Naboth, and the blood of his sons." The rabbis, however, maintain that the expression "sons" means those who would come out from him had he remained alive. It is correct for him who says that the estates belong to the government, as it reads [I Kings, xxi. 13]: Naboth hath blasphemed God and the king." But to him who says the estates belong to the heirs, why was it. necessary to add "and the king"? But according to your theory that they belong to the heirs, why was God mentioned? You may say it was done to increase the anger of the people. For the same reason, it was also mentioned, "and the king." It is correct to him that it belongs to the government, as it is written [ibid. ii. 30]: "No; but here will I die"--which means: I do not wish to be counted among those who were killed by the government, so that my estate should belong to it. But according to him who says that it belongs to the heirs, what difference did it make to Joab. The simple one of remaining, alive one hour longer. It reads [ibid., ibid. 30]: "And Benayahu brought the king word again, saying, Thus hath Joab spoken, and thus hath he answered me." Joab said to Benayahu thus: Go and tell the king: You cannot do two things with me. If you wish to slay me, you must accept for yourself the curses with which your father cursed me. And if you will not accept them, you will have to leave me alive. Farther on it is said: "Then said the king unto him, Do as he hath spoken, and fall upon him, and bury him." Said R. Jehudah in the, name of Rabh: All the curses with which David cursed Joab fell on the descendants of David. They were [II Sam. iii. 29]: "And may there not fail from the house of Joab one that hath an issue, or that is a leper, or that leaneth on a crutch, or that falleth by the sword, or that lacketh bread." The first fell on Rehoboam (this is inferred from an analogy of expression which
we do not deem it necessary to translate); the second--"leper"--on Uzziyahu. As it reads [II Chr. xxvi. 9]: "The leprosy even broke out on his forehead." "Leaneth on a crutch"--Azza, of whom it reads [I Kings, xv. 23]: "Nevertheless, in the time of his old age he became diseased in his feet." And R. Jehudah in the name of Rabh said: Podagra caught him. Said Mar Zutra b. Na'hman to R. Na'hman: What kind of a sickness is this? And he answered: It pains like a needle in raw flesh. (Asked the Gemara: Wherefrom did he know this? He himself suffered from this sickness. And if you wish, he had it as a tradition from his master; and also, if you wish, from [Ps. xxv. 14]: "The secret counsel of the Lord is for those that fear him; and his covenant, to make it known to them.") Falleth by a sword--on Josiah, as it reads [II Chr. xxxv. 23]: "And the archers shot at king Josiah; and the king said to his servants, Carry me away, for I am sorely wounded." And R. Jehudah said in the name of Rabh: They made his body like a sieve. "Lacketh bread"--fell on Jechonyah [II Kings, xxv. 30]: "And his allowance was a continual allowance," etc. Said R. Jehudah in the name of Rabh: This is what people say: It is better for one to be cursed than to curse, as usually a curse in vain falls upon the invoker--Rashi. Joab was brought before the court to justify himself for the killing of Abner; and he answered that he was the revenger of the blood of Asahel. But did not Asahel prosecute Abner? And he said: Then he could save himself by striking on one of the members of his body. And to the question: Perhaps he could not do so? he answered: Did he not strike him [II Sam. ii. 231 "On the fifth rib"? to which (according to R. Johanan) the bile and the liver are attached. Now, if he could aim at the fifth rib, could he not do so at some other member? The court then said: Let us leave out Abner. But why did you kill Amassa? And he answered: He was a rebel to the king. As it reads [ibid. xx. 5]: "So Amassa . . . he remained longer than the set time." And he was answered: Amassa was not a rebel, as he had a good reason for his delay. 1 But you are indeed a rebel, as you were inclined to Adoniyahu against David's will. It reads [I Kings, ii. 28]: "And the report came to Joab; for Joab had turned after Adoniyahu, though he had not turned after Abshalom." Why is it mentioned here that he had not turned after Abshalom? Said R.
[paragraph continues] Jehudah: He was inclined to turn, but did not. And why? Said R. Elazar: Because the "moisture of David" was still in a good condition. And R. Jose b. Hanina said: Because the active force of David were still in their strength. As it is said above (p. 55) in the name of Rabh: "Four hundred children," etc. All the Amoraim mentioned above differ with R. Abbah b. Kahana, who said: "If not for Joab, David would not have been able to occupy himself with the law; and if not for David, Joab would not have been able to wage the war. As it is written [II Sam. viii. 16 and 17]: "And David did what is just and right unto all his people. And Joab the son of Jeruyah was over the army." It means that, because Joab was over the army, David was able to do justice, etc.; and also vice versa. It reads [ibid. iii. 26]: "Who brought him back from the well of Sirah." What does "well of Sirah" mean? Said R. Abbah b. Kahana: The well means the pitcher of water which David took from under the head of Saul; and Sirah--literally "a thorn"--means the piece of cloth which David cut off from the garment of Saul, which were good reasons for Abner to reconcile Saul with David, if he should care to do so; but he did not. It reads farther on [ibid., ibid. 27]: "Joab took him aside in the gate, to speak with him in private." Said R. Johanan: He brought him before the Sanhedrin to try him for having killed his brother Asahel. And to his answer that Ashael was his persecutor, he was told as said above. It reads [I Kings, ii. 32]: "And may the Lord bring back his bloodguiltiness upon his own head, because he fell upon two men more righteous and better than he." Better than he? Because they were commanded verbally (to kill the priests of Nob) and did not listen, and Joab was commanded in a letter to kill Uriah, and he listened. It reads farther on [ibid., ibid. 34]: "And he was buried in his own house in the wilderness." Was, then, his house in the wilderness? Said R. Jehudah in the name of Rabh: It was like a wilderness. As a desert is ownerless, and every one who wishes can derive a benefit from it, so was the house of Joab. And also as a desert is free of robbery and adultery, so was the house of Joab. It reads [I Chr. xi. 8]: "And Joab repaired the rest of the city." Said R. Jehudah: Joab supplied to the poor of that city everything to which they were accustomed, even little things and fishes.Footnotes
127:1 Leeser translates all the verses in the plural; in the text, however, in Leviticus it is in the singular and in Numbers in the plural.
129:1 The term in Hebrew is "zobeach touhda yichabdon'ni"--literally, "He who slaughters thanks-offering, glorifieth me"; and as the last word is written with a double Nun instead of one, he infers both worlds.
131:1 Leeser has translated this improperly. The real translation is thus: "And all Israel stoned him with a stone, and they burnt them with fire and stoned them with stones. Hence the supposition of Rabhina.
133:1 The term in Hebrew, "emek," has two meanings--"valley" and "deep." Hence the explanation of R. Johanan.
134:1 We translate according to the Talmud. Leeser's translation, among others, does not correspond.
135:1 Rashi thus explains this: It happened with a contractor, who was wicked, that he died and was to be buried on the same day as a great man in Israel. And all the inhabitants of the city came to take part in the funeral of the latter, and the relatives of the contractor were also occupied in bearing the coffin of the contractor in the same street, following after the coffin of the great man. Suddenly, however, enemies fell upon them, and all of them left the coffins and ran away, except one disciple, who did riot leave the coffin of his master. Thereafter, when they returned, people exchanged the coffin of the contractor for that of the great man, notwithstanding the disciple's cry that it was an error, and buried the contractor with great honor instead of the great man; and the relatives of the contractor buried the scholar. And the disciple was much grieved because his master was buried in such disgrace and the contractor with such honor. Finally his master appeared to him in a dream, and counselled him not to grieve, saying: Come with me and I will show you my glory in the garden of Eden, and also the place of that wicked man in Gehenna. And the reason why I was punished was because I was present when a scholar was disgraced, and I did not protest. And the contractor prepared a banquet for the governor of his country, and as the governor did not appear he donated the banquet to the poor of the city, and this was his reward. And to the question of the disciple: Till when shall this man be in Gehenna? The answer: Until Simeon b. Shetha shall die and take his place. And what is the sin of b. Shetha? There are many Israelitish women who occupy themselves with witchcraft in the city of Askalon, and Simeon b. Shetha, who is the head of the court, does not seize them. On the morrow this disciple told this to Simeon b. Shetha. And he selected eighty tall young men, gave to every one a big pitcher which contained a mantle, to the end that it should be kept dry, as that day was a rainy day, and told them that they should be careful to complete the task, as there were eighty witches, and every one of them had to lift up one woman, as then they could not employ any more witchcraft. He then visited the witches at their palace, leaving the young men outside. And to the question who he was and what he wanted, he answered: I am a witch, and am come to try how far you are skilled in it, And they said to him: What can you do? To which he answered: To-day is a rainy day, but nevertheless I can bring you eighty young men, all of whom aye wrapped in dry mantles. And they said to him. Bring them in. He went out, and at his hint they took out the mantles from the pitchers, wrapped themselves in them, and entered. Each of them lifted up a woman; and so they overcame them, took them out, and all of them were hanged. Their relatives, however, p. 136who grieved over them, plotted against Simeon's son, and two of them plotted together that their false testimony concerning a crime which results in capital punishment should correspond, and so testified before the court, and he was condemned. And when he was brought to be executed, he said; If I am guilty of this crime, etc. After the witnesses heard this they retracted, and gave the execution of the women as a reason for their false testimony; and nevertheless he was executed. This legend is to be found in the Palestine Talmud--Tract Hagigah, Chapter II.--with many changes; and according to the Aruch, the name of this contractor mentioned was Bar Mayon.
136:1 In the text there is repeated here a contradiction from Tract Souteh, its proper place, which we therefore omit.
141:1 We cannot find in the English idiom any equivalent for this. In the German translation of the Mishna (Berlin, 1823) it is translated in accordance with Rashi. "Wie lässt sich gleichsam die Gottheit bei solcher Gelegenheit aus? Mein Kopf ist mir zu schwer! Meine Arme sind mir zu schwer!" notwithstanding that such is objected to by Rabha in the Gemara farther on, and his explanation is: As one who is in trouble says, "The world is ignominous to me." And all this is taken from the term "qillelath elohim" [Deut. xx. 23], (translated by Leeser "dishonor of God"), which one reads, "qal leth," literally, "not easy," and the other "qollal-eth," literally, "an ignominy" (according to Thosphath and Hananel). And therefore it seems to us better to give the original expression of the Mishna, without any explanation, leaving the matter to the reader, as we could not omit it, according to our method.
145:1 Here are omitted two pages of the text, as their contents are repeated in different places. Much of it is already translated, and the rest will appear in the proper place. However, the following difference of Abayi and Rabha is important--namely, according to Abayi, if one dies a usual death, while he is still wicked, without repentance, his death does not make atonement for him. And the same is the case even if he is executed by the court, if he did not repent. But if one were slain by the government, his death atones. And his reason is, because the government does not always act justly in its decisions, while the court does. But according to Rabha, even if he is executed by the court, death atones; as, according to him, there is no comparison between a death from a usual sickness and that by an execution; and therefore in the latter case he is atoned, but not in the former. And Ameimar said that the Halakha prevails in accordance with Abayi, but the rabbis said that the Halakha prevails with Rabha, with which the Gemara agrees.
147:1 In the text the reason is given, but if translated it would not sound well in English; and, besides, it is unimportant, and therefore 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 FOUR KINDS OF DEATH PRESCRIBED IN THE SCRIPTURE, AND HOW THEY OUGHT TO BE EXECUTED. THE ENUMERATION OF THOSE WHO COME UNDER THE CATEGORY OF STONING. HOW THE EXAMINATION CONCERNING BLASPHEMY SHOULD BE CONDUCTED. CONCERNING THOSE WHO TRANSFER THEIR CHILDREN TO MOLECH; FAMILIAR SPIRITS, ETC. CONCERNING CURSING FATHER AND MOTHER, SEDUCERS AND MISLEADERS, ETC.
MISHNA I.: Four kinds of capital punishment are prescribed to the court by the Scriptures; viz., stoning, burning, slaying by the sword, and choking. R. Simeon, however, maintains: Their order is: burning, stoning, choking, and slaying by the sword. The laws of stoning are already explained above (in the preceding chapter).
GEMARA: Rabha in the name of R. S'hora, quoting R. Huna, said: Where the sages give an arrangement (plan of action), one must not be particular with it, as it does not matter if one changes the order and acts with the latter before the former, except in the case of the seven dyes with which a spot of menstruum is to be tested, which are mentioned in Chapter IX., Mishna 4, of Tract Nida, of which the Mishna says: If one tested with them not according to the order mentioned, or one mixed all the seven together and tested with them, he has done nothing. R. Papa the Elder in the name of Rabh said: The same is the case in the four kinds of capital punishment mentioned in our Mishna. As R. Simeon differs in their order, it must be understood that the Mishna is particular in their arrangement. But why does not R. Huna mention them? R. Huna speaks of that in which all agree, but where there is dissension he does not. R. Papa himself said: Also concerning the arrangement of worshipping on the Day of Atonement (when the Temple was in existence), as there is a Mishna (Yoma, p. 84). All the rites on the Day of Atonement, whose order is prescribed by the Bible . . . if they are performed in a wrong order, one has done nothing. R. Huna, however, did not mention this.
[paragraph continues] For the reason of not changing the order prescribed by the Scripture is because of the holiness of that day, and not because one act is more rigorous than the other. R. Huna b. R. Jehoshua maintains that the order of the daily offerings is also not changeable, as there is a Mishna (in Tract Thamid): This is the arrangement. However, R. Huna, who did not mention it, maintains that this is only meritorious. And the rule mentioned above in the name of R. Huna excludes also the ceremony of Halitzah, and also the dressing of the priests at their worship in the Temple, as explained elsewhere. 1
"Stoning, burning," etc. Stoning is more rigorous than burning, as blasphemers and idolaters are punished with it. And why are these two crimes considered more rigorous than others? Because the sinners laid their hands on the main principle of the Jewish faith (i.e., disbelief and denying the power of God). But why not say, on the contrary, that burning is more rigorous, as it applies to the daughter of a priest who has sinned? And why should this crime be more rigorous? Because it reads that she violates her father, which means that her father loses his priesthood. The rabbis hold that only a married woman who was the daughter of a priest is to be burned if she sinned; but if betrothed, stoning is applied. And because a betrothed woman is distinguished from a married one, who bears the name of her husband and not of her father, while a betrothed still bears the name of her father, we see that stoning is more rigorous. The same is also more rigorous than slaying by the sword, because of the reason stated above. But why not say that the sword is more rigorous, because it applies to the men of a misled town? And what is the rigor of a misled town--that their property is to be destroyed? It may be answered that a misleader is always considered more criminal than those who are seduced. And there is a Boraitha that the punishment of a misleader is stoning. Stoning is also more rigorous than choking. And lest one say that choking is more rigorous, as it applies to one who strikes his father or mother, and the rigor is because the honor of the parents is equalized with the honor of the Omnipotent, it is inferred from the case of a daughter of a common Israelite, who is excluded from choking, which applies to a married daughter of the same, and is included in the category of stoning; and it is already explained above that a betrothed
disgraces her father and his whole family, while the disgrace of a married one belongs more to her husband. 1
Burning is more rigorous than the sword, as it applies to a sinning daughter of a priest, whose crime is more rigorous for the reason stated above. But why not say, on the contrary: The sword is more rigorous, because it applies to a misled town, the property of which is to be destroyed? We find the term "her father" concerning stoning, and the same term is used concerning burning. And it is to be said: As the term "her father," used concerning. stoning, is more than the sword, the same is it with the term which is used by burning-that burning is also more rigorous than the sword.
Burning is also more rigorous than choking. This is inferred from the fact that a married daughter of a priest is excluded from choking, which applies to a married daughter of a common Israelite, and is included in the category of burning. And lest one say that choking is more rigorous, as it applies to him who has struck his father or mother, the honor of whom is equalized with the honor of the Omnipotent, it is already decided above that they who laid their hands on the main principle, etc., are considered the greatest criminals.
"R. Simeon said," etc. According to him, burning is more rigorous than stoning because it applies to a daughter of a priest who has sinned; and it is considered more criminal because her father loses his- priesthood. And he (Simeon) differs from the rabbis, who make a distinction between a betrothed and a married woman, as according to him both are punished with burning; and because the greatest criminal is punished with burning, it is to be inferred that this punishment is more rigorous than all others. 2
R. Simeon also differs concerning the punishment of misleaders of a misled town, as according to him they also are punished with choking.
R. Johanan used to say: A betrothed young girl, who is the daughter of a priest, is to be stoned if she has sinned; but according to R. Simeon, she must be burned. And the same is
the case if she had sinned with her father. (Although, if such a case happened with a commoner, burning is applied, nevertheless she is to be stoned, according to the rabbis); as according to their theory stoning is more rigorous, and there is a rule that he who is guilty of two crimes liable to capital punishment is to be executed with the more rigorous one. And according to R. Simeon, that burning is more rigorous, she is to be put to death by that. And where do we find R. Simeon saying so? In the following Boraitha: R. Simeon said: There are already two general expressions about adultery; viz. [Lev. xx. 10]:
"Then shall the adulterer be put to death, "together with the adulteress." And this applies either to a betrothed or to a married woman, with whom the daughter of a priest is certainly included. Why, then, does the Scripture distinguish a daughter of a priest [ibid. xxi. 9]: "And if the daughter of any priest profane herself by committing harlotry, her father doth she profane: with fire shall she be burnt," which makes no difference between a betrothed and a married woman? To exclude her from the punishment of a betrothed commoner, to whom stoning applies; and if married, choking applies, and puts her in the category of those who are to be burned. Now, as to the punishment of a married one, which applies to a daughter of a priest, all agree that it is more rigorous than that of a commoner; the same is the case with a betrothed one, whom the Scripture excluded from an easier punishment, for a severer one. Hence burning is more severe than stoning. However, collusive witnesses (to whom, according to the Scripture, the same must be done as to the defendant, if their testimony were true) are not excluded from that punishment which they would have to suffer if they had been found collusive in the case of a daughter of a commoner, and are punished with the death of their accused; no matter if the accused were the daughter of a commoner or of a priest; namely, if they had testified regarding a betrothed one, and thereafter were found collusive; the death which would apply to her, were she a daughter of a commoner, applies to them. And the same is the case if they had testified regarding a married one.
The rabbis taught: It reads: "And if the daughter of any priest profane herself." Lest one say that it means that she profaned herself by violating the Sabbath, Therefore it reads further, "by committing harlotry." But lest one say, even if she were single, it reads here, "her father." And the same expression
is used concerning a betrothed woman; as there the sin is because of her bond to a husband, the same is the case here. It is considered a crime liable to capital punishment if she were already betrothed or married. But perhaps it means when she has sinned with her father, and not with some one else? Therefore it reads, "she profane," which means that she has profaned him, and not he her. Hence from the analogy of expression, father, we infer that the sin is because of her husband. But from this analogy of expression it is inferred when she was betrothed. Whence do we know that, if she was not of age and nevertheless married, or of age and betrothed or married, or even if she were already an old woman, that the same is the case? Therefore it is written: "And the daughter of any priest," which means, whatever her condition. But lest one say: It speaks only when she was married to a priest, but if to Levite or to a common Israelite, to a heathen, to a descendant of one who has profaned the priesthood, to a bastard, or to a descendant of the Gibeonites who were temple-servants, it is different? Therefore it is written: "The daughter of any priest," which means, even though she was not the wife of a priest. She is to be burned, but not her paramour. She is to be burned, and not her collusive witnesses.
R. Eliezer said: With her father, burning applies; with her father-in-law, stoning applies. How is this to be understood? Shall we assume that he means she has sinned with her father? Then why only a daughter of a priest? Is not the case the same even when she was a daughter of a common Israelite? Burning applies to committing a crime with a daughter, and stoning to the crime with a daughter-in-law. We must then say that with the expression, "with her father," he means when she was still under the control of her father; and the same is it with the expression, "with her father-in-law." Now, let us see in accordance with whom is his theory. It is not in accordance with the rabbis, as they hold that only a married woman is to be burned, but not a betrothed. It is also not in accordance with R. Simeon, as he holds that there is no difference between betrothed and married--both are to be burned. And also not in accordance with R. Ishmael, as he holds that only a betrothed is to be burned, but not one married. And he also holds that if she had committed a crime with her father-in-law, choking applies. As to this, Rabin sent a message in the name of R. Jose b. Hanina: This Boraitha is to be explained thus: It is in
accordance with the rabbis. And the expression of R. Eliezer, "with her father," means thus: If such a crime be punished, with an easier death than if the crime had been committed with her father--e.g., that of a married woman, daughter of a commoner, to whom choking applies, in her case, because she is a daughter of a priest, the death of her father, if he should commit the crime with her, applies to her--viz., burning. And if such a crime by a commoner were punished with a heavier death than if the crime were with her father--e.g., a betrothed daughter of a commoner, to whom stoning applies, no exception is to be made, and the punishment of her sinning with her father-in-law applies--viz., stoning. R. Jeremiah opposed: Does, then, the Boraitha read "easier" and "heavier death," which it should do according to your explanation? "Therefore," said he, "it must be said that R. Eliezer is in accordance with R. Ishmael; and the expression, 'with her father,' means under the control of her father-viz., a betrothed, not yet married, to whom burning applies; and 'with her father-in-law' means, literally, if she had sinned with her father-in-law she is to be stoned, but if with some one else choking applies."
Said Rabha: This explanation is still more complicated than the first one, as both expressions must be explained equally: either both are to be taken literally, or both mean "under the control." And therefore said Rabbhina: R. Eliezer is in accordance with the rabbis, and his decision was just the reverse. "With her father," stoning applies, and "with her father-in-law," burning applies. And both expressions mean "under the control." And although a betrothed woman is no longer considered under the control of her father, he so expressed himself because of the latter expression, "under the control of her father-in-law."
Said R. Na'hman in the name of Rabha b. Abuhu, quoting Rabh: The Halakha prevails according to the message which was sent by Rabbin in the name of R. Jose b. Hanina. Said R. Joseph: Do you come to teach a Halakha which will be used only then when the Messiah shall appear? Said Abayi to him: According to your theory, why should we study the section Holiness (which treats about sacrifices, at the time when the Temple was in existence) at all? Is not the whole for the time when the Messiah shall appear? You must then say that we must study and be rewarded for it by Heaven. The same is the case here. We have to study, although it is not for use to us
at this time, and the reward will come from Heaven." Answered R. Joseph: I mean to say, may one name Halakha in the explanation of a Boraitha (i.e., the message of Rabbin was only concerning the explanation of the Boraitha)? To which it may be said, that such an explanation is correct. The expression "Halakha," however, means "law," which does not correspond with his meaning.
Where do we find R. Ishmael's opinion, of which it is said above that Eliezer holds with him? In the following Boraitha: It reads, "the daughter of any priest profane," etc., speaking of a young betrothed maiden. But perhaps it means a married woman? This is not the case, as the law about adultery is already written in Lev. xx., in which a daughter of a priest is included. However, we find that the Scripture has distinguished a daughter of a commoner, and applied stoning to her, if she was betrothed and not married. The same is the case with the distinction of a priest's daughter, to whom the Scripture applies burning, meaning also when she was betrothed only. Her collusive witnesses, however, are to be punished with the same death that applies to her paramour, because it reads [Deut. xix. 19]: "Then shall ye do unto him as he had purposed to do unto his brother." "To his brother," but not to his sister. So is the decree of R. Ishmael. R. Aqiba, however, maintains: There is no difference whether she was betrothed or married, as in both cases burning applies. And to the question of R. Ishmael: Why should we make a distinction concerning a daughter of a priest, the expression for which is "Naahra" (a maiden), while the same expression is used concerning a commoner who is betrothed only? R. Aqiba rejoined: Ishmael, my brother, I infer it from the word and, which begins the verse--"and the daughter of any priest." Rejoined R. Ishmael: "Do you desire that this should be burned, because the Vav (which means and) is in your way?
Let us see! R. Ishmael infers the punishment of a priest's daughter from an analogy of expression. How does he explain the above-cited verse, "her father has she profaned"? He explains it as in the following Boraitha: R. Meir used to say: This phrase means that if, until now, their custom was to consider her father holy, from that time they consider him common; if until that time he was honored, from that time he is disgraced. As people say: "Cursed be such a man who has born such a daughter; cursed is he who has brought her up; cursed
is he that he has such an offspring." Said R. Ashi: According to whom do we name a wicked person, "wicked, the son of a wicked," although his father was upright? In accordance with the Tana of the just-mentioned Boraitha.
MISHNA II.: The prescribed punishment of burning was thus: The sinner was placed in waste knee-deep. Then, placing a twisted scarf of coarse material within a soft one, they wound it around his neck. One (of the witnesses) pulled one end to ward himself, the other doing the same, until he opened his mouth. Meanwhile the executioner lights (heats) the string, and thrusts it into his mouth, so that it flows down through his inwards and shrinks his entrails. To which R. Jehudah said: Should the culprit die before the string is thrust into his mouth, the law of burning has not been properly executed, and there fore his mouth must be opened forcibly with a pair of pincers. Meanwhile, the string having been lighted, is thrust into his mouth so that it may reach his intestines and shrink his entrails. R. Eliezer b. Zadok, however, said: Once a daughter of a priest, having sinned, was surrounded with fagots and burned. He was answered: The court which so decided was ignorant of the exact law.
GEMARA: What kind of a string was it? Said R. Matnah: A string of lead. And whence is this deduced? They infer this burning from the burning of the congregation of Korah. As there the souls only were burned, but the bodies remained, so also here only the soul is to be burned, but the body is to remain. R. Elazar said: They infer this burning from the burning of the sons of Aaron. As there the souls only were burned and the bodies remained, the same is the case here.
Let us see! He who infers it from the congregation of Korah, wherefrom does he know that the soul, and not the body, was burned? From [Num. xvii. 3]: "The censers of these sinners against their own souls." 1 Which means that the souls only were burned, but the bodies remained. And the other, who infers it from the sons of Aaron, maintains that this phrase means they were burned bodily, and the expression "own souls" means that they were liable to be burned because of their souls. And it is in accordance with Resh Lakish, who said elsewhere: It reads [Ps. xxxv., 16]: "With flattering, babbling mockers, they gnashed upon me with their teeth," which
means that, because they had flattered Korah for the sake of entertainments (to which he used to invite them), the ruler of Gehenna gnashed upon them with his teeth. And he who inferred this from the sons of Aaron, wherefrom does he know that their souls only were burned, etc.? From [Lev. x. 2]: "And there went out a fire from before the Lord, and consumed them, and they died before the Lord," which means that, although they died before the Lord, they died as all others-only their corpses remained. And the other maintains that the sons of Aaron were burned bodily, and the expression, "they died," means, that the beginning was from inside the body. As we have learned in a Boraitha: Abba Jose b. Dusthai said: Two fire cords came out from the Holy of Holies chamber, and were divided into four: two of them entered the nostrils of one, and two the nostrils of the other, and burnt them. But is it not written, "and consumed them"? From which it is to be inferred "them," and not something else. Yea--"them," and not their garments.
But why should burning not be inferred from the offerings of the bullocks, which were burned bodily? Common sense dictates that a man must be inferred from man, and not from cattle: as a man sins, and one infers a man who has sinned from another man, and from him whose soul was taken for his sin to him whose soul is to be taken. But he who infers it from Korah's congregation-why did he not infer it from the sons of Aaron? Because he maintains that the sons of Aaron were burned bodily, and to infer from them would not be proper, as R. Na'hman said in the name of Rabha b. Abuhu: From the phrase "Thou shalt love thy neighbor as thyself," we deduce that one may select a decent death for the sinner. But as the theory of R. Na'hman is accepted--why, then, the analogy of expressions at all? If not for the analogy, one might say that the burning of the soul, while the body remains, is not called burning at all, and that which is written, "Thou shalt love thy neighbor," etc., could be done by increasing the fire by bundles of fagots so that he should die quickly. Therefore the analogy of expression shows that such a burning, although the body remains, is called burning.
There is a tradition that Moses and Aaron used to walk, and Nadob and Abihu followed them, and all Israel after them. And Nadob said to Abihu: When will the two old men die, and you and I be the leaders of Israel? To which the Holy One,
blessed be He, said: Time will show who will bury whom. Said R. Papa: This is what people say: "There are many old camels who are laden with the skins of young ones." R. Elazar said: A scholar, in the eyes of a commoner, at first acquaintance (the scholar) appears to him (the ignorant man) like a golden kithon. However, after he holds conversation with him, he appears like a silver kithon; if he accepts a benefit from him, he appears like an earthen one, which, once broken, cannot be mended.
Aimretha bath Tli was the daughter of a priest, who had sinned, and R. Hama b. Tubiah surrounded her with bundles of twigs and burned her. And R. Joseph, when he heard this, said: He erred twice. In the explanation of the Mishna, in which, according to R. Na'hman, the sinner was burned with lead; and (b) he was not aware of the following Boraitha: It is written [Deut. xvii. 9]: "And thou shalt come unto the priests the Levites, and unto the judge that may be in those days." At that time, when the priests acted, judgments concerning capital punishments might be rendered; but when there were no more acting priests, no such judgment could be rendered.
"Said Elazar b. Zadok," etc. Said R. Joseph: The court in question was of the Sadducees (who take the commandments of the Scripture literally). Did, indeed, Elazar say so? And the answer was as stated in the Mishna? Is there not a Boraitha which states: R. Elazar b Zadok said: I recollect, when I was a child, being carried upon the shoulders of my father, and a daughter of a priest, who was a sinner, was brought, and was surrounded with bundles of twigs and burned? To which the sages answered: At that time you were a child, and we cannot accept any evidence from a child? Two such cases happened in the days of R. Elazar, and when be was answered that no evidence of a child is to be taken into consideration, he related before them the other case which be saw when he was already of age, and to this they answered him: That court was an ignorant one.
MISHNA III.: The prescribed punishment of slaying was thus: He was decapitated, as was customary with the Roman government. R. Jehudah, however, maintains: Such a death is repulsive. But they put his head on the (executioner's) block and cut it off with a butcher's hatchet. And he was answered: There is not a more detestable death than this.
GEMARA: There is a Boraitha: R. Jehudah said to the sages: I myself am aware that the death I explained is repulsive;
but what can we do against the Scripture, which reads [Lev. xviii. 13]: "And in their customs shall ye not walk," etc.? To which the rabbis answered: As this is written in the Scripture, we are not learning this from them, but they learned it from us. And should one disagree with us, then what would he say to the following Boraitha: Garments and some other valuable things may be burned on the grave of kings, for the sake of their honor. And this custom is not considered the custom of the Amalekites. And why? It is because it is mentioned in the Scripture [Jer. xxxiv. 5].: "And as burnings were made for thy father," etc., we do not learn from them. The same is the case here.
Let us see! In the succeeding chapter, there is a Mishna: The following are slain with a sword: a murderer, and the men of a misled town. It is correct, "a misled town," as it is plainly written [Deut. xiii. 16], "with the edge of a sword." But whence do we know that the same is the case with a murderer? From the following Boraitha: It reads [Ex. xxi. 20]: "And if a man smite his servant or maid with a rod, and he die under his hand, it shall be surely avenged." And as we do not know what "revenge" means; therefore it is written [Lev. xxvi. 25]: "And I will bring unto you the sword avenging." Hence avenge means with a sword.
But whence do we know that they decapitated him--perhaps they killed him with the sword in another part of the body? It reads, "with the edge of a sword," which excludes stabbing. But perhaps it means splitting the head. It is already inferred by Rabha b. Abuhu from the phrase: "Thou shalt love thy neighbor as thyself," that one must select a decent death. But all this speaks of when one has slain a bondman. Whence do we know that the same is the case with a freeman (whose punishment is death in general, and there is a rule that wherever the kind of death is not mentioned, it means choking)? This cannot be, as an a fortiori conclusion is to be drawn: A slave, who is less in value than a freeman, if one kills him, he is punished with slaying by the sword (which is more rigorous than choking); if one kills a freeman, so much the more should he be punished with a more rigorous death. But this would be correct only to him who holds that the sword is more rigorous than choking. But to him who holds the contrary, what can be said? He infers this from another verse, as is stated in the following Boraitha: It is written [Deut. xxi. 9]: "And thou
shalt put away (the guilt of) the innocent blood from the midst of thee." From this we see that all shedders of blood are compared to the heifer in that connection. And lest one say that as the heifer is killed with a butcher's knife toward the back part of the neck, the same shall be done with all other shedders of blood, it is already inferred above that a decent death must be selected.
MISHNA IV.: The prescribed punishment of choking was thus: The sinner was placed in waste knee-deep. Then, placing a twisted scarf of coarse material within a soft one, they wound it around his neck. One (of the witnesses) pulled one end toward himself, the other doing the same, until the soul of the culprit departed.
GEMARA: The rabbis taught: It reads [Lev. xx. 10]: "And if there be a man "--" man" means to exclude a minor, "Who committeth adultery with a man's wife"--"man's wife" means to exclude the wife of a minor (whose marriage is not considered). "With his neighbor's wife" means to exclude those people who live with their wives in common. 1 [Ibid.]: "Then shall the adulterer be put to death" means choking. But perhaps it means some other kind of death which is prescribed by the Scripture? It was said that wherever it is written in the Torah "death," without specifying which, you must not apply a rigorous one, but an easier one (and choking is the easiest of all the kinds of death mentioned in the Torah). So is the decree of R. Jashiah. R. Jonathan, however, maintains: The reason is not because choking is an easier death, but because there is a tradition that in any place where death is mentioned in the Scripture, without specifying which, it is choking. Rabbi said: The reason is because there is mentioned in the Scripture a heavenly death [Gen. xxxviii. 10], and there is also mentioned death from human hands. And as a heavenly death does not leave any marks on the body of the man, the same must it be by death from human hands. But perhaps burning is meant, which also does not leave any signs outside of the
body? As the Scripture prescribed burning to a daughter of a priest, it is to be understood that all other sinners are not punished with the same.
It is correct that choking is to be used, according to R. Jonathan, who says that it is a tradition; and Rabbi gives the reason. But R. Joshiah, who wants only an easier death--whence does he deduce choking at all? (Such is never mentioned in the Scripture.) And perhaps there is no more than three kinds of death, and from these three the easier one must be selected, which is the sword? Said Rabha: The four kinds of death are known traditionally. And the expression of R. Jonathan, "not because it is easier," shows that he and R. Joshiah differ concerning choking, whether it is an easier death. In the same manner differ R. Simeon and the rabbis.
R. Zera said to Abayi: There are sinners who are punished with stoning, although it is not so mentioned in the Scripture. But they are inferred from an analogy of expression, "from a familiar spirit." I question you which expression of the two following is meant--"put to death," or "their blood shall be upon them"? And he answered: The latter expression, as the first is needed, "to death," which is explained above.
MISHNA V.: To the following sinners stoning applies: viz., one who has had connection with his mother, with his father's wife, with his daughter-in-law, with a human male, or with cattle; and the same is the case with a woman who uncovers herself before cattle; with a blasphemer; an idolater, he who sacrifices one of his children to Moloch; one that occupies himself with familiar spirits; a wizard; one who violates the Sabbath; one who curses his father or mother; one who has assaulted a betrothed damsel; a seducer who has seduced men to worship idols, and the one who misleads a whole town; a witch (male or female); a stubborn and rebellious son.
One who has had connection with his mother is guilty of transgressing two negative commandments--the negative commandment as to his mother and the negative commandment as to his father's wife. R. Jehudah, however, maintains: He is guilty only for his mother. One who has connection with his stepmother is also guilty in respect to two negative commandments--the commandment of adultery and the separate commandment as to his father's wife. There is no difference if he has done it while his father was still alive or after his death; and there is also no difference if she was only betrothed to his
father, or already married. One that commits a crime with his daughter-in-law transgresses also two commandments-adultery and of the separate commandment of his son's wife. And there is also no difference if it was done while his son was still alive or after his death, after her betrothal or after marriage.
GEMARA: There is a Boraitha: R. Jehudah said: "If his father had married his mother illegally; he transgresses only the commandment as to "mother" and not as to "his father's wife." And the expression illegally means that by marrying, he has transgressed a negative commandment which is not punished capitally or with korath. As to such, even according to the rabbis, such a marriage is not considered at all. But to death which is only of a negative commandment--e.g., a widow to a high-priest--according to the rabbis the marriage is considered, and according to R. Jehudah it is not, as he holds with R. Aqiba, who is of the same opinion. R. Oushia objected: There is a Mishna in Yebamoth [Chap. II., 3]: "Owing to other legal prohibitions, or on account of the holiness of station" [ibid. ix.]. By "legal prohibitions" (to marry as above mentioned) are meant the secondary degrees of relationship prohibited by the rabbins as to intermarriage. Those prohibited to intermarry on account of holiness of station are a widow to a high-priest; a woman who had been divorced or performed the ceremony of Halitzah; who had (unlawfully) been married to an ordinary priest. To which a Boraitha adds: R. Jehudah changes the expression, viz., by "legal prohibition," a widow to a high-priest, etc., is meant; and "on account of holiness of station," the secondary degrees of relationship, etc., are meant. Hence we see that R. Jehudah changes the expression only, but nevertheless the ceremony of Halitzah is required. And if it were in accordance with R. Aqiba (that a marriage within secondary degrees is not considered at all), why, then, the ceremony of Halitzah? R. Jehudah collected only the expressions which ought to be in accordance with the opinion of the first Tana, but he himself does not require anything of that kind.
When R. Itz'hak came from Palestine, he taught just as our Mishna teaches, viz.: R. Jehudah said: He is guilty only concerning the negative commandment as to the mother. And what is the reason? Said Abayi: Because it reads [ibid. xviii. 7]: "She is thy mother," which means: You have to make him guilty only because of his mother, but not because of the wife of his father. But why do the rabbis make him guilty concerning
two commandments? Do they not hold this theory? The rabbis apply this expression to that which was said by R. Shesha b. R. Idi, which is stated farther on. But does not R. Jehudah also hold the theory of R. Shesha? Hence, his theory cannot be inferred from it. Therefore said R. Aha b. Iki: It reads [ibid. 7]: "She is thy mother, thou shalt not uncover her nakedness," meaning, "for one nakedness you can make her guilty, but not for two." But if so, why does not R. Jehudah differ concerning a daughter-in-law, who is guilty, according to our Mishna, as to two commandments? It then must be said, because there is one body, although there are two transgressions, he is culpable only for one, as it reads, "her nakedness." The same should be the case concerning the mother? Therefore said Rabha: R. Jehudah holds: At the beginning of the verse, "the nakedness of thy father" means "thy father's wife." And that it means thus he infers from an analogy of expression, as stated farther on. And "father's wife" means that there is no difference whether she is his mother or not. But whence do we know that it is the same with his mother, who is not his father's wife? Therefore it is written: "She is thy mother, thou shalt not uncover her nakedness." Hence only for the crime as to the mother you make him guilty, but not as to that of his father's wife.
There is a Boraitha according to Rabha: "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. But whence do we know that the same is the case with his mother who is not his father's wife? Therefore it reads: "His father's nakedness," which is pleonastic, 1 and is written only for the purpose of an analogy of expression. "Both of them shall be put to death" means by stoning--but perhaps with some other death? It is written here: "Their blood shall be upon them"; and in the case of "familiar spirits" there is also the same expression. And as concerning the latter stoning is plainly applied by the Scripture, the same is the case here. But here we have heard only of the punishment. Whence do we know of the warning? Therefore it is written: "The nakedness of thy father," etc., which means of "thy father's wife." But perhaps it means literally the father himself? It is written here, "The nakedness of thy father thou shalt not uncover,"
and there it is written, "The nakedness of his father he had uncovered." As the latter means his wife, so does the former. And from the expression "his father's wife," it is inferred, whether his mother or not. But whence do we know as to his mother who is not his father's wife? Therefore it is written, "the nakedness of thy mother," etc. But this is only in the warning in which the Scripture has equalized the mother who is not his father's wife with her who is. But whence do we know that the punishment is also equal? From the analogy of the expressions: "the nakedness of thy father thou shalt not uncover," and it reads also: "He has uncovered the nakedness of his father." And so as in the warning it is equalized with the mother who is the wife of his father and with her who is not, the same holds good concerning the punishment. "She is thy mother" means, you can make her guilty only for the crime as mother, but not for the crime as father's wife. But the rabbis, who do not use the above analogy of expression, whence do they deduce the punishment of a mother who is not the wife of one's father? Said R. Shesha b. R. Idi: It reads: "She is thy mother," which means that the Scripture equalized the mother who is not the wife of his father with her who is.
"Who had connection with his daughter-in-law." But let him be guilty also because of the wife of his son? Said Abayi: The verse begins with his daughter-in-law and ends with the wife of his son--to teach that "daughter-in-law" and "wife of his son" are one and the same.
MISHNA V.: 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. And should one say: If man has sinned, what is the fault of the animal? Because a misfortune has happened to a human being through it, therefore says the verse: "It shall be stoned," There is also another explanation; viz., should it happen that people saw the animal passing the street, they would say: On account of it so and so was stoned.
GEMARA: A human male--whence is deduced? That which the rabbis taught: "A man" means to exclude a minor; with a male," of any age whatever or a minor. "As they lie 1
with a woman" means to say that with a woman there are two kinds of lyings, one usual and one unusual; and one is guilty as to both. Said R. Ishmael: This verse came to teach that which was just mentioned, as if not for this teaching it would be pleonastic, for regarding a male there is only one kind of connection. "Both of them have committed an abomination, they shall be put to death"--by stoning, but perhaps by some other death. Therefore it is written: "Their blood shall be upon them." And the same expression is used concerning "a familiar spirit," etc. And as the punishment of the latter is known to be stoning, the same applies here. From this we have heard the punishment. Whence is the warning? [Ibid. xviii. 22]: "And with a man shalt thou not lie as with a woman; it is an abomination." But this is a warning only to him who has done so. But whence is the warning to them with whom the connection was made? As to this it reads [Deut. xxiii. 18]: "There shall not be a courtesan of the sons of Israel"; and also [I Kings, Xiv. 24]: "And courtesans also were in the land . . . the Lord had driven out." So R. Ishmael. R. Aqiba, however, said: "It was not necessary to have another verse warning him with whom the connection was made, as this is inferred from the same verse, which may apply also to the latter by some change in pronunciation.
Concerning animals, whence is this deduced? The rabbis taught: From Lev. xx. 15. "A man" excludes a minor; "with an animal," it makes no difference whether it was a large or a small one; "shall be put to death" means stoning--but perhaps some other kind of death? It reads here (ibid.) "thahargu" (ye shall kill), and in Deut. xiii. 10, "thahargenu" (thou shalt kill). And as there the punishment is stoning, as it reads plainly in ibid. 11, the same is the case here. Here, however, we have learned only the punishment to the man. But whence do we know that the animal with which the crime was done is also to be killed in the same manner? It reads [Ex. xxii. 18]: "Whosoever lieth with a beast shall surely be put to death," which was not necessary for the man, as there is another verse cited above. Apply it, therefore, to the beast. From this we have learned the punishment for both. But whence is the warning? From the above-cited verse [Lev. xviii. 23]. But this is only a warning to the man, and whence the warning concerning the animal? From Deut. xxiii. 18. (Here are repeated the cited verses in the name of R. Ishmael,
and also in the name of R. Aqiba, that it is not necessary, as in the above verses there is a warning for both. 1)
MISHNA VI.: A blasphemer is not guilty, unless he mentioned the proper name of God (Jehovah). Said R. Jehoshua b. Karha: Through the entire trial the witnesses are examined pseudonymously--i.e. (the blasphemer said): "Jose shall be beaten by Jose." (Rashi explains that the name Jose was selected because it contains four letters, as does the proper name of the Lord.) When the examination was ended, the culprit was not executed on the testimony under the pseudonym; but all are told to leave the room except the witnesses, and the oldest of them is instructed: "Tell what you heard exactly." And he does so. The judges then arise, and rend their garments, and they are not to be mended. The second witness then says: I heard exactly the same as he told. And so also says the third witness.
GEMARA: There is a Boraitha: One is not guilty unless he blesses (i.e., curses) the Holy Name by the Holy Name (as illustrated in the Mishna): "Jose shall be beaten by Jose." And whence is this deduced? Said Samuel: From Lev. xxiv. 16, of which the term in Hebrew is "we-nauquib shem," which means, "when he has cursed with the name." And whence do we know that the term "nauquib" means cursing? From [Num. xxiv. 8]: "How shall I curse," etc. And the warning as to this is [Ex. xxii. 27]: "Thou shalt not revile Elohim." But does not "nauquib" mean "hole"? Why, then, not so say--i.e., suppose one wrote the Holy Name on a piece of parchment and tore it, the term "we-yiqaub" [II Kings, xii. 10]? meaning he "bored a hole in its lid"--and the warning as to which should be from [Deut. xii, 3, 4]: "Ye shall destroy their name out of the same place. Ye shall not do so to the Lord," etc. It was said above if the Name should be cursed by the Name, which is not the case here. But perhaps the term "nauquib is meant as plainly expressed, as the same is used in Num. i. 17, which are expressed by name" (i.e., it was forbidden to
express the name Jehovah in any case whatever, except in that of the high-priest in his worshipping on the Day of Atonement when the temple was in existence; and even then, when the people heard this expression, they used to fall upon their faces). And the warnings should be from [Deut. vi. 13]: "The Lord thy God shalt thou fear" (which means to pronounce His name). This does not hold good, firstly because, as said above, it must be by the Name; and secondly, a warning of a positive commandment cannot be counted as a warning. And if you wish, it may be said because it is so written plainly [Lev. xxiv. 11]: "The son of the Israelitish woman pronounced (weyiqaub) the holy name and blasphemed." Hence this term is used to blaspheme. But perhaps one is not guilty unless he did both-expressed the name and blasphemed? This cannot be supposed, as farther on it reads [ibid. 14]: "Lead forth the blasphemer," and the expression "nauquib" is not mentioned. Hence it is one and the same.
The rabbis taught: It reads: "any man whatsoever," etc., meaning to include the heathen, who are warned of blasphemy the same as an Israelite. And they are to be executed by the sword, as wherever it is mentioned in the Scripture concerning death to the children of Noah, it means by the sword, and not otherwise. But is this inferred from the verse cited? Is it not stated farther on that such is inferred from a verse in Genesis? Said R. Itz'hak of Navha: This verse is needed to include the pseudonyms. And it is in accordance with R. Mair of the following Boraitha: Any man whatsoever that blasphemeth his God shall bear his sin. To what purpose is this written? It reads earlier [ibid. 16]: "But he that pronounced the name of the Lord (with blasphemy) shall be put to death"? Because from this one might say that he is not guilty, unless he has done so with the unique proper Name, but not with the pseudonyms. Therefore it reads in the cited verse (15), "his God"--no difference between proper and pseudonym. So is the decree of R. Mair. The sages, however, maintain: For the unique proper Name death is the punishment; and for the pseudonyms it is only a warning by a negative commandment, and the punishment is as for the transgression of a negative commandment. (Says the Gemara:) Itz'hak of Navha differs with R. Maisha, who said: One of the children of Noah, who blasphemed God by any of His pseudonyms whatsoever is guilty, and is put to death, even according to the rabbis.
The rabbis taught: Seven commandments were given to the children of Noah, and they are: Concerning judges, blasphemy, idolatry, adultery, bloodshed, robbery, and that they must not eat of the member of a body while the animal is still alive. R. Hananiah b. Gamaliel said: Also of the blood of the same. R. Hidka said: Also castration was forbidden to them. R. Simeon said: Also witchcraft. And R. Jose said: All that is said in: the portion on witchcraft is forbidden to a descendant of Noah. As it reads [Deut. xviii. 10-12]: "There shall not be found among thee any one who causeth his son or his daughter to pass through the fire, one who useth divination, one who is an observer of times, or an enchanter, or a conjurer, or a charmer, or a consulter with familiar spirits, or a wizard, or who inquireth of the dead. For an abomination unto the Lord are all that do these things; and on account of these abominations the Lord thy God doth drive them out from before thee." And as there is no punishment without preceding warning, hence they were commanded not to do all this. R. Elazar said: Also Kilaim. I mean to say, the descendants of Noah are allowed to dress themselves with a mixture of wool and flax; and also sow different kinds of seeds together (which are forbidden to the Israelites); but they are forbidden to gender different kinds of animals and to graft two kinds of trees together.
Whence is all this deduced? Said R. Johanan: From Genesis ii. 16. 1 Were the descendants of Noah indeed commanded concerning judges? Is there not a Boraitha: Ten commandments were commanded to Israel in Marah; seven of them are those which were accepted by the descendants of Noah, and three were added to them: viz., Judges, Sabbath, and to honor father and mother. Judges--as it is written [Ex. xv. 25]: "There he made for them a statute and an ordinance," etc. And concerning Sabbath and the honor of parents it reads [Deut. v. 12 and 16]: "As the Lord thy God hath commanded thee." And R. Jehudah said: "As he hath commanded thee in Marah." Said R. Aha b. Jacob: This means that Israel was commanded to establish courts of justice in every district and
city; and the children of Noah were commanded concerning judges in general only. But is there not a Boraitha: As Israel was commanded to establish judges in every city and district, so also were the children of Noah commanded? Said Rabha: The Tana of the Boraitha cited above is in accordance with the school of Manasheh, which excluded from the seven commandments judges and blasphemy, and included castration and kilaim. Thus was it taught in the school of Manasheh: Seven commandments were the descendants of Noah commanded: Concerning idolatry, adultery, bloodshed, robbery, a member of a living animal, castration, and kilaim. R. Jehudah, however, said: Adam the First was commanded as to idolatry only, as it reads [Gen. ii. 16]: "And the Lord commanded the man" i.e., the Lord commanded him about the law of God (that he should not be exchanged for another). R. Jehudah b. Bathyra said: Also as to blasphemy. And there are some others who say, also concerning judges.
According to whom is that which was said by R. Jehudah in the name of Rabh: God said to Adam: I am God, thou shalt not blaspheme me. I am God, thou shalt not exchange me for an idol. I am God, the fear of me shall be always upon thee? According to the "some others" just mentioned. (The expression "the fear of me," etc., means to appoint judges who shall punish them who transgress my commandments.)
Said R. Joseph: It was said in the college: For transgression of the following three commandments a descendant of Noah is put to death: viz., adultery, bloodshed, and blasphemy. R. Shesheth opposed: It is correct concerning bloodshed, as it reads [Gen. ix. 6]: "Whoso sheddeth man's blood, by man shall his blood be shed." But whence do you deduce the two others? And should you say that it is inferred from bloodshed, then why not infer all the seven? And if you infer it from "any man whatsoever," then idolatry is also inferred from same? Therefore said he: In the college it was said: For four they are but not put to death? Said R. Na'hman b. Itz'hak: It means ant of Noah indeed put to death because of idolatry? Have we not learned in a Boraitha concerning idolatry, if for such a crime one is put to death by the court of Israel, the descendants of Noah are warned of it? Hence they are only warned, but not put to death? Said R. Na'hman b. Itz'hak: It means that they are warned if they should commit this they will be put to death. R. Huna and R. Jehudah and also all other disciples
of Rabh say: For each case of the seven commandments a descendant of Noah is to be killed. As the Scripture prescribed death for one, it shall serve as an example for the others.
When R. Dimi came from Palestine, he said in the name of R. Elazar, quoting R. Hanina: A descendant of Noah who has separated a female slave to one of his male slaves, and thereafter had connection with her, is to be put to death for this crime. A similarity to this in the crime of bloodshed was not taught. Said Abayi: If such a similarity is to be found, it may be in that which we have learned in the following Boraitha: R. Jonathan b. Saul said: If one runs after his neighbor to kill him, and the one who flees could save himself by injuring one of the members of his pursuer, and he did not so, but killed him, it is a crime of bloodshed and he is put to death for it. 1 R. Jacob b. Aha found a writing in a Haggadic book written by the college of Rabh, thus: A descendant of Noah may be put to death by the decision of one judge, by the testimony of one witness, and although he was not warned previously. However, the testimony must be from a man, and not from a woman; and the testimony holds good even if given by one of his relatives. In the name of R. Ishmael it was said: He is put to death even for killing an embryo. Whence is this deduced? Said R. Jehudah: From [Gen. ix. 5]: "Your blood, however, on which your lives depend, will I require," meaning even by one judge. "At the hand of every beast" means even without warning; "at the hand of man" means even with one witness; "at the hand of every man" means of a man but not of a woman; "brother" means even when the witness was a relative. And the reason of R. Ishmael is [ibid. 6]: "Whoso sheddeth man's blood in man, 2 his blood shall be shed." What is meant by "a man in man," if not an embryo, which is in the entrails of his mother? And the first Tana, who holds that a descendant of Noah is not guilty for an embryo, is in accordance with the school of Manasheh, which maintains that every death which is mentioned regarding the descendants of Noah is choking; and he explains the above-cited verse "in man shall his blood be shed," that it means choking, from which death occurs inside of the body as illustrated above. R. Hamnuna objected: Does, then, the commandment
of bloodshed not apply to a woman? Is it not written [Gen. xviii. 19]: "For I know him, that he will command his sons and his household after him"? And by the "household" it means the woman, as the sons are already mentioned? He objected, and he himself answered: It reads farther on, "that they shall keep the way of the Lord, to do righteousness and justice." It means that he shall command his sons to appoint judges for justice and his household to do righteousness and charity.
Said R. Ibiah the Elder to R. Papa: Say, then, that a woman who is a descendant of Noah shall not be put to death if she has killed a man; as it reads "from the hand of a man," which means not from the hand of a woman? And he answered: So said R. Jehudah: It reads, "Whoso sheddeth the blood of a human," etc., which means any human whatsoever. (Said R. Ibiah again: "Say, then, that a female descendant of Noah should not be punished if she sinned, as it reads [ibid. ii. 24]: "Therefore doth a man leave his father and his mother"--a man, and not a woman. And he answered: So said R. Jehudah: It reads further, "and they become one flesh"; and with this the verse associates them to be equal in every respect.)
The rabbis taught: It should read "a man." Why is it written "any man whatsoever"? To include heathens in the warning of adultery, as well as Israelites. But was it not said above that in the seven commandments which were given to the descendants of Noah adultery is included? Said R. Johanan: It is needed for such a relationship which they do not recognize, but the Israelites do; e.g., a betrothed woman before marriage, whom they consider as single. And if it happened that a heathen should sin with a woman betrothed of an Israelite, he is to be tried in the courts of the Israelites. But if he sins with a married woman, he may be tried in his own courts--the punishment of which is by the sword, and not choking. But is there not a Boraitha: A heathen who has sinned with a betrothed woman is to be stoned; and if with a married, choked? Hence he is tried in the Israelitish courts, as in his own courts he would be slain by the sword. Said R. Na'hman b. Itz'hak: By the term married woman is meant that the ceremony of marriage was performed, but her husband had not as yet had any connection with her; and such a marriage their courts do not consider, and the bride is still deemed single. Therefore he is to be tried in the courts of Israel, and punished with their prescribed
death. And so taught R. Haninah: The law of the heathen considers the wife of a man only after their connection, but not after the ceremony of marriage.
There is a Boraitha in accordance with R. Johanan: 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. So is the decree of R. Mair. The sages, however, say: There are many relationships which in our courts are not punished with death, nevertheless the descendants of Noah are warned of them. If it happens that one of the latter has committed a crime with a daughter of Israel, which is considered adultery in the courts of the Israelites, but not in the courts of the heathens, he is to be tried in the courts of Israel. But if such a crime is considered adultery also in the courts of the heathen, he may be tried in their own courts. However, we do not find a case which would be a crime for Israelites and not for heathens, except that of a betrothed woman (as said above). But why does the Boraitha not count the case of a married woman--by the ceremony of marriage only--which is a crime according to our law, and not according to their law? The Boraitha is in accordance with the school of Manasheh: The death of the descendants of Noah is also choking. Hence it makes no difference in which court he should be tried. 1
Resh Lakish said: He who raises his hand to strike his neighbor, although he has not as yet struck him, is called wicked. As it is written [Ex. ii. 13]: "And he said to the wicked one, wherefore smitest thou thy fellow?" It does not read, "why hast thou smitten," but "why smitest thou." Hence he is called wicked even if he only raises his hand to strike. Zeairi in the name of R. Hanina said: He is named sinner. As it reads [I Sam. ii. 16]: "If not, I will take it by force." And immediately after it reads: "The sin of the young men was very great." R. Huna said: If one has the habit of raising his hand against man, his arm may be cut off. As it reads [Job, xxxviii. 15]: "And the high-raised arm should be broken." 2 (And R. Huna acted according to his theory, and
cut off the arm of a man whose habit was to strike men with it.) R. Elazar said: There is no remedy for such a man, but burial. As it is written [ibid. xxii. 8]: "But as for the man of a strong arm, for him is the land." He said again: Only one who has a strong arm may obtain land (as usually there is much trouble to keep away cattle and all other animals which harm the growth, and also to preserve it from thieves, etc.). Resh Lakish said again: It reads [Prov. xii. 11]: "He that tilleth 1 his ground will be satisfied with bread." It means, when one makes himself a slave to the earth, he may be satisfied with bread, but not otherwise.
The Boraitha states: R. Hananiah b. Gamaliel, etc. The rabbis taught: It reads [Gen. ix. 4]: "But flesh in which its life is, which is its blood, shall ye not eat." This means any member of the animal, while it is still alive. And Haninah b. Gamaliel said: Also the blood of same. And his reason is that the verse is to be read thus: Flesh in which its life is, ye shall not eat, and blood in which its life is, ye shall not eat. The rabbis, however, maintain that blood is here mentioned to teach that other animals, as reptiles, are allowed to a descendant of Noah. Similar to this, it reads [Deut. Xii. 23]: "Only be firm, so as not to eat the blood; for the blood is its life," which the rabbis explain as meaning the blood of the veins, by which the soul departs.
For what purpose is it written concerning the descendants of Noah, and thereafter repeated in the laws which were given on Mount Sinai? It is as R. Jose b. Hanina said: Every commandment Which was given to the descendants of Noah, and thereafter repeated in the laws given on Mount Sinai, applies to both Israel and the descendants of Noah. And that which was given to the descendants of Noah, and not repeated, applies to Israel only. However, we have only one case [Gen. xxxii. 33] which was commanded before the laws were given on Mount Sinai, which was not repeated, and applies only to Israel, according to R. Jehudah's theory (in Tracts Chulin, Chap. vii., which will be explained there).
The master said: A commandment which was repeated on Sinai is for both. Why not the contrary-because it was repeated on Sinai, it must be said it was given to Israel only? Although
idolatry was repeated on Sinai, as we find that the descendants of Noah were already punished for idolatry, therefore it applies to both. He says further that that which was given to the descendants of Noah and not repeated is for Israel only. Why not the contrary--because it was not repeated, it applies to the descendants of Noah and not to Israel? Because we do not find any case where it is forbidden to the descendants of Noah and allowed to the Israelites, a commandment which was given to the children of Noah and repeated on Sinai applies to both. Is there not circumcision? [Gen. xvii.]: "And God said unto Abraham: But thou, for thy part, shalt keep my covenant"; and it reads also [Lev. xii. 3]: "And on the eighth day shall the flesh of his foreskin be circumcised." And nevertheless it applies to Israel only, and not to the descendants of Noah? The verse just cited was needed to permit the circumcision to be done on Sabbath; as the term "on the eighth day" means even on Sabbath. And if you wish, it may be said that circumcision was given to Abraham especially. As it reads [Gen. xvii.]: "But thou, for thy part, shalt keep my covenant: thou, and thy seed after thee, in their generations"--which means "thou and thy children," but not some other man's. But according to this, let the descendants of Ishmael be obliged to circumcise? It reads [ibid. xxi. 12]: "For in Isaac shall thy seed be called." But if so, let this obligation be for the children of Esau also? It reads "in Isaac," but not the whole of Isaac, which means to exclude the descendants of Esau. R. Oushia opposed: Let, then, the children of Kturah not be obliged to circumcision. And R. Jose b. Abin or R. Jose b. Hanina said: From [ibid. xvii. 14]: "He hath broken my covenant" is understood even the sons of Kturah.
R. Jehudah said in the name of Rabh: Adam the First was not permitted to eat meat. As it reads [ibid. i. 29, 30]: "To you it shall be for food, and to every beast of the field," meaning, but not the beasts to you. However, after the descendants of Noah came, he permitted them. As it reads [ibid. ix. 3]: "Every moving thing that liveth shall be yours for food: even as the green herbs have I given you all things." And lest one say that they may be eaten while still alive, therefore it reads: "But flesh in which its life is, which is its blood, shall ye not eat." And lest one say that this forbids also reptiles, the term "but" excludes them. How is this to be understood? Said R. Huna: It reads "his blood," which means of animals in
which the blood is separated from the flesh, and excludes reptiles, of which the blood is not separated from their flesh.
There was an objection to that which was said that Adam the First was not allowed to eat meat, from that which Jehudah b. Bathyra said (Vol. IX., p. 7): "Adam the First was sitting in the garden of Eden, and the angels served him with roasted meat," etc. Hence he was allowed? And the answer was that with meat which came from heaven it is different. And the question is, was there any meat which came from heaven? It was answered: Yea! As it happened to R. Simeon b. Chalafta, who, being on the road, met lions, which were stirred against him; and a miracle occurred, and two legs fell from heaven, one of which the lions consumed, and the other one remained. Simeon then took it, brought it into the college, and questioned if it was allowed to eat it. And he was answered: An unclean thing never came from heaven. And R. Zera questioned R. Abuhu: How is it if such should come from heaven in the form of an ass? And he was scolded for this question thus: Was it not decided long ago that no unclean thing descends from heaven?
"R. Simeon said: Also witchcraft." What is his reason? It reads [Ex. xxii. 17]: "Thou shalt not suffer a witch to live"; and farther on: "Whosoever lieth with a beast shall surely be put to death"--which applies also to the descendants of Noah. And as this applies to them, the same is the case with the first verse. R. Elazar said: Kilaim! Whence is this deduced? Said Samuel: From [Lev. xix. 19]: "My statutes shall ye keep," which means the "statutes which I stated long ago" (long ago, to the descendants of Noah). "Thy cattle shalt thou not let gender with a diverse kind; thy field shalt thou not sow with mingled seeds." And as concerning cattle "gender" is prohibited, so concerning fields grafting is prohibited; and as the prohibition of the first applies to every place--in Palestine and outside of it--the same is the case with the fields. But if so, why not explain [ibid., ibid. 37]: "Ye shall therefore observe all my statutes, and all my ordinances," in the same way: "my statutes which I stated long ago"? Nay! "You shall therefore observe my statutes" means which I have now given to you. But in the above-cited verse, which begins, "my statutes ye shall observe," it must be said the statutes which are already stated.
"Said R. Jehoshua b. Karha," etc. Said R. Aha b. Jacob:
[paragraph continues] Infer from this that one is not guilty unless he blesses (curses) the Name which contains four letters, but not that of two letters (e.g., a Jud and Heh--"Ja"; or Aleph and Lamedh, which is "ehl." But is this not self-evident? Does not the Mishna state, e.g., "Jose . . . by Jose," which contains four letters? Lest one say that this is only an example, but not in particular, he comes to teach us that it is not so. According to others, Aha b. Jacob said: Infer from this that a name which contains four letters is also considered. Is this not self-evident? The example is given, "Jose by Jose," which contains four. Lest one say that one is not guilty, unless he blesses (curses) the great Name (Rashi explains: Which contains forty-two letters--which are not known to us, and the example is not particular, he comes to teach us that it is not so). 1
"They arise." Whence is this deduced? Said R. Itz'hak b. Ami: From [Judges, iii. 20]: "And Ehud came unto him; and he was sitting in the summer upper chamber, which was for himself alone. "And Ehud said: I have a word of God unto thee. And he arose out of his chair." Is there not to be drawn an a fortiori conclusion--Eglon, the king of Moab, who was a heathen, to whom the God of Israel was known only by a pseudonym, rose up from his chair when he heard the Name of God: An Israelite, hearing the great Name, so much the more must he arise?
"Rend," etc. Whence is this deduced? From [II Kings, xviii. 37]: "Then came Elyakim the son of Chilkiyah, who was superintendent over the house, and Shebuah the scribe, and Yoach the son of Assaph the recorder, to Hezekiah, with their clothes rent; and they told unto him the words of Rabshakeh."
"Not to be mended." Whence is this deduced? Said R. Abuhu: From an analogy of expression--"rent." It reads here: "With their clothes rent"; and [ibid. ii. 12]: "And Elisha saw it, and he cried, My father, my father, the chariot of Israel, and their horsemen. And be saw him no more; and he took hold of his clothes and rent them in two pieces." Why the word "pieces"? Is it not self-evident that when he rent them in two, they became pieces? Hence this term means that they should remain pieces and never be mended.
The rabbis taught: 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. However, the witnesses themselves are not obliged to rend their garments gain, as they already did so when they heard the blasphemy. But supposing they have already rent? Do they not hear this now? Hence they should rend again? This cannot be supposed, as it reads [Ibid., ibid., 19]: "And it came to pass, when King Hezekiah heard it, that he rent his clothes." Hence Hezekiah rent, but they who told him did not rend again.
R. Jehudah said in the name of Samuel: If one hears a blasphemy from the mouth of a heathen, he is not obliged to rend his garments. And should one say: Why did they rend when they heard it from Rabshakeh?--he was not a heathen, but an apostate Jew. The same said again in the name of the same authority: Garments must be rent only upon the unique proper Name, but not upon a pseudonym. And he differs from R. Hyya in both his decisions, as R. Hyya said: If one hears a blasphemy in our times, he is not obliged to rend; for if one should say he is obliged, then all garments would be full of rents. Now, who are the blasphemers--Israelites? Are they so bold as to blaspheme God? Hence he means heathens. And are, then, the heathen aware of the unique proper Name? Hence he means a pseudonym. And nevertheless he says, "in our times," from which we understand that in previous times it was obligatory to rend upon a pseudonym also. Infer from this that so it was.
"The second witness says: I heard exactly the same," etc. Said Resh Lakish: Infer from this that in civil cases, as well as in criminal, if one of the witnesses says: "I have heard just the same," and does not repeat what he has heard, it is lawful. And that which the court used to require from the witnesses, that each of them should explain how the case was, is only a higher standard which the rabbis have enacted. In the case of blasphemy, however, in which it is impossible that the second witness should repeat, they leaned on the biblical law. As, if it were biblically illegal, how could it be supposed that because it is forbidden to repeat, a man should be put to death?
"And so also says the third witness." This anonymous Mishna is in accordance with R. Aqiba, who compares three witnesses to two.
MISHNA VII.: He is considered an idolater who worships
it with its proper 1 worship; and even if he only sacrifices, smokes incense, or pours wine. He is also so considered if he bows himself to it, or accepts it as a god, even without any other act. And also if he only says: Thou art my god. However, he who arms, kisses, wipes the dirt, sprinkles water, washes, anoints, dresses, or shoes it, transgresses a negative commandment [Ex. xx. 5]. He who vows or determines in its name transgresses also a negative commandment [ibid. xxiii. 13]. He who uncovers himself before Baal Peor, and commits a nuisance (is guilty, for) this is the mode of worshipping him; also, he who casts a stone on a merculis (hermaeon)--that is the way of worshipping it (and he is guilty).
GEMARA: Whence is this deduced? The rabbis taught: It is written [Ex. xxii. 19]: He that sacrificeth unto any god, save unto the Lord only, shall be utterly destroyed. If the word "any" were omitted from this verse, I would say it speaks of one who sacrifices animals outside of the sanctuary; but as the word is written, it is to explain that it means: who sacrifices to any idol. From this, however, we infer sacrificing only. But whence do we know that the same is the case with smoking incense or pouring wine? From the words "unto the Lord only," which would be superfluous if they do not mean: all the kinds of worshipping the Lord--if he has done it to an idol, he is guilty. Now, as sacrificing is included in the worshipping of the Eternal, and nevertheless specified, it is to be assumed that it comes to teach that one is guilty for that kind of worshipping which takes place inside of the sanctuary. Whence, then, do we know that bowing is also considered? From [Deut. xvii. 3]: "And he hath gone and served other gods and bowed 2 himself to them"; and [ibid., ibid. 5]: it reads: "Then shalt thou bring forth that man," etc. But from this we know the punishment--whence is the warning? [Ex. xxxiv. 14]: "For thou shalt bow thyself to no other god." And lest one say that arming, kissing, shoeing are also included to be crimes subject to capital punishment, as they are to be inferred from bowing, therefore sacrificing was specified, to show that nothing is to be inferred from bowing, and also to teach that as a distinction is made concerning the worshipping inside of the sanctuary, the same is the case with all other worshippings which are used inside--if with such one has worshipped an idol,
he is liable to a capital punishment. However, bowing is out of this rule and stands alone.
The master said: If not for the word "any," I would say it speaks of sacrificing out of the sanctuary. But is not such a crime under the category of Korath? Should one say that it is when he was not warned, but if he was, capital punishment applies, he comes to teach us that it is not so.
Said Rabha b. R. Hanan to Abayi: Why not say that from bowing "all kinds of worshipping" is to be inferred, and the specification of sacrificing is needed for itself, to teach that an intention of worshipping an idol with any future act, although one does not intend it by the first act, is considered worship; e.g., if one slaughters a cow with the intention of sprinkling its blood, or of burning its fat before the idol, although with the slaughtering he does not worship it, it is nevertheless considered, and it is prohibited to derive any benefit from the cow, according to Johanan? But according to Resh Lakish the cow is permissible for use, as he does not hold this theory. And the reason of R. Johanan is because he infers it from the worshipping inside, as to which a future intention, e.g., to sprinkle the blood on the morrow--makes invalid the whole sacrifice. The same is the case with an outside act, as illustrated here.
Said R. Aha of Difti to Rabhina: According to Rabha b. R. Hanan, who said to Abayi: Why not say that from bowing all kinds of worshipping are to be inferred? What, then, would he exclude from the passage which reads [Deut. xii. 30]: "How did these nations serve their god?" And lest one say that one who uncovers himself for such idols as are worshipped with sacrifices is excluded, this may be inferred from bowing: as the act of bowing is an honor to the idol, so are all kinds of worship which are in order to honor. But uncovering, which is a disgrace, is not considered a worship? Say--to exclude the one who uncovers himself for Merculis. And lest one say that as the kind of worship of Merculis is a disgrace, the same shall be the case with the disgrace of uncovering, it comes to teach us that it is not so. But did not R. Elazar say: Whence do we know that if one sacrifices an animal to Merculis he is guilty? From [Lev. xvii. 7]: "So that they shall offer no more their sacrifices unto evil spirits," which is not needed for itself, as this is already written elsewhere? Apply it, therefore, to bringing an offering to an idol of which the kind of worshipping is not sacrificing. Now, as from bowing is inferred all kinds of
worshipping which are of honor, so one is liable if he did it for any idol, whatsoever be the kind of its worship. Why, then, does R. Eliezer need the above-cited verse? He means to say: Even if he had sacrificed to Merculis, not as an honor but for dishonor, he is nevertheless liable for the transgression of the negative commandment cited above.
It happened to Hamnuna that he lost his oxen, and while searching for them Rabha met him, and propounded to him a contradiction from the two following Mishnayoth: In our Mishna it is stated: "He who worships idols," from which is to be inferred only worshipping, but not saying. And there is another Mishna, farther on, which states: He who says: "I will worship," or "I will go to worship," or "We will go to worship"--is already considered an idolater. And he answered: Our Mishna means that he said: I do not accept this idol as a god unless by worshipping. Said R. Joseph to him: You are saying this as if it were your own opinion. Do you ignore the Tanaim who differ on this point in the following Boraitha: If one says: "Come ye and worship me, for I am a god," R. Mair makes him guilty as a seducer, and R. Jehudah frees him. However, if there were some who had already worshipped him, all agree that he is guilty. Thus it reads [Ex. xx. 41 Thou shalt not make unto thyself," etc., which means also, "Thou shalt not make thyself for an image." But the point of their difference is that he was not as yet worshipped. R. Mair makes him guilty because, according to his opinion, talking is to be taken into consideration; and according to R. Jehudah it is not. Hence we see that Tanaim differ on this point? After deliberating, however, said R. Joseph: What I said was not correct; as we find in the following Boraitha that R. Jehudah also makes one guilty for talking: R. Jehudah said: One is not guilty unless he says: "I will worship," or "I will go and worship," or "We will go and worship." And the point of their difference in the Boraitha cited above is thus: If one who is a seducer for himself (i.e., "Worship me"), and there were some people who said, "Yea," according to R. Mair he is considered a seducer because there were some people who answered, "Yea"; and according to R. Jehudah this is not considered, as their answer, "Yea," is only a joke. They ridicule him, saying: Are you not a man like us? And the Mishnayoth, which contradict each other, are to be explained thus: Our Mishna, which states "who worshipped," treats if he who was seduced, listened and
worshipped him, he is guilty; because if an individual made up his mind to worship him, it is to be presumed that he will not retract. And the other Mishna treats of when many people were seduced and worshipped him, it is not to be considered, as it is to be supposed that they will reconsider, seeing there is nothing in him, and will retract. And R. Joseph said: Whence did I take my theory? From [Deut. xiii. 9]: "Then shalt thou not consent unto him, nor shalt thou hearken unto him." From which it is to be understood that if he did listen, and consented unto him, he is culpable. Abayi objected to him: Is there indeed a difference between an individual who was seduced and a majority? Is there not a Boraitha: It reads [ibid., ibid. 7]: "If thy brother, the son of thy mother, should entice thee," means that there is no difference between an individual and a majority, if they were seduced? And the verse which excluded an individual from a majority, is to make more rigorous his body--viz., to be stoned--and lenient concerning his property, which remains for his heirs; and excluded also a majority from an individual, to make more lenient their bodies--viz., slaying by the sword--and rigorous concerning their property, which must be burned. Hence we see that only on this point is there a difference between them, but on all other points they are equal. And therefore he explains the two contradictory Mishnayoth, that one speaks of when he has seduced himself--therefore he is not culpable unless he worshipped, as from his talk only, it is supposed that he will retract after deliberating. And that Mishna which makes him culpable for talking only, speaks of when he was seduced by others, as it is not to be supposed that he will retract. On the contrary, as they are many, it is highly probable that he will be inclined to them. And Abayi also infers his theory from the above-cited verse, "If he did not consent," etc., from which it is to be understood that if he did, he is culpable. Rabha, however, maintains that both Mishnayoth speak of when he was seduced by others, but one treats of when the seducers said to him: "So does the idol eat, so does it drink, so does it good, and so does it harm; and the other one treats of when he was not so informed. And he adds: Whence do I deduce my theory? From [ibid., ibid. 8]: "Some of the gods of the nations which are round about you, that are nigh unto thee," etc. To what purpose is it written? Is there a difference if the idols were near to him or far from him? It must be explained that the verse means
thus: From the nature of the idols which are near to thee, thou mayst understand the nature of those which are far from thee. (I.e., usually a seducer comes to tell one from such as are not known to him, and relates before him all the good of the idol, and so seduces him to worship. Hence he said to him: "So does it eat, so does it drink," etc.) R. Ashi maintains: The Mishna which makes one guilty for talking treats of an apostate, who is guilty for talking, as such would not retract after it is seen that such is his habit." Rabhina, however, said: Both Mishnayoth speak of an Israelite, not of an apostate, and they do not differ at all, as the first Mishna says, "who worshipped," and the second states not only "worship," but if he says, "I will," he is also culpable.
It was taught: If one worship an idol because he loves it, or because he fears it, according to Abayi he is culpable, and according to Rabha he is free. The former said so because, after all, he has worshipped it, and therefore he is guilty; and the latter maintains: He is guilty only when he accepts it as a god; but when this is no longer the case, he is free.
Said Abayi: I take my theory from our Mishna, which states, "If one worship," etc., "sacrifice," etc. Now, as the Mishna explains farther on all the kinds of worshipping, the term "worshipped," without specifying the kind, means for love or for fear. Rabha, however, maintains that the Mishna is to be explained as by R. Jeremiah. Said Abayi: I may infer my theory from the following Boraitha: It reads: "Thou shalt not bow thyself to them"--but thou mayst bow thyself to a man who is equal to thee. But lest one say, "Even if the man were worshipped like Haman?" therefore it reads: "Thou shalt not worship them." Now, Haman was worshipped for fear. We see, then, that such a worship is considered. Rabha, however, explains the Boraitha: Like Haman, who established himself as an idol, but not like him who was worshipped only for fear. And Abayi said again: I infer my theory from the following Boraitha: The anointed priest for war may bring an offering, if he acted unintentionally concerning idolatry. So is the decree of Rabbi. Now, let us see! What means, "he acted unintentionally"? Shall we assume that he thought, of a house of idolatry, that it was a synagogue, and bowed himself? Then why should he bring an offering--his heart was toward Heaven? We must then say that he saw an image and bowed himself. Now, if he accepted it is a god, then he has acted intentionally
and should be put to death. But if he has not accepted it as a god, but bowed himself--e.g., for the honor of the king who was with him? Then it cannot be considered a sin at all, even to the extent of bringing an offering. We must then say that "unintentionally" means for love or for fear. Rabha, however, maintains that his error was that he thought that such a thing was allowed.
R. Zakkai taught in the presence of R. Johanan: If one has sacrificed, smoked incense, poured wine, and bowed himself before an idol, because of one forgetfulness (that the law does not allow it), he is liable for one sin-offering only. And R. Johanan answered him: Go and teach your teaching outside of the college (i.e., it is nonsense). Said R. Abba: As to the theory of R. Zakkai, R. Jose and R. Nathan differ in the following Boraitha: The negative commandment of kindling on Sabbath, which is already included in the negative commandment, "Thou shalt not do any labor," is written for the purpose of teaching that he who kindles transgresses only a negative commandment, which is not under the category of Korath or capital punishment, as for all other labor on Sabbath. And R. Nathan differs from him (see Sabbath). And there is the same difference here concerning bowing. According to R. Jose, bowing was specified for the purpose of showing that he who does so transgresses only a negative commandment, to which capital punishment does not apply. And R. Nathan differs from him with the same theory as concerning kindling.
When R. Samuel b. Jehudah came from Palestine, he said that R. Zakkai had taught before R. Johanan thus: Concerning Sabbath it is more rigorous than all other commandments in one respect, and all other commandments are more rigorous than concerning Sabbath in another respect--viz., concerning Sabbath, if one has done two kinds of labor by one forgetfulness (e.g., he forgot that it was Sabbath), he is liable for two sin-offerings; and in all other commandments--if, for instance, he worshipped with two kinds by one forgetfulness--he is liable to one sin-offering. And in another respect the other commandments are more rigorous than concerning Sabbath; as concerning Sabbath, if he had done any labor unintentionally--i.e., he intended to do another thing and did this--he is not liable at all, while concerning other commandments, if such a thing occurs, he is liable for a sin-offering.
R. Ami said: If one has worshipped by all three worships--
viz., sacrificing, smoking, and pouring--in one forgetfulness, he is liable only for one sin-offering. Said Abayi: The reason of R. Ami's theory is: Because it is written, "Ye shall not worship them," hence the Torah has included all kinds of worship into one. Did Abayi indeed say so? Has he not said: There is written in the Scripture three times "bowing," concerning idolatry: once, that one is culpable if the worship of the idol was by bowing; second, that one is culpable even if the worship of the idol was not by bowing; and the third, to distinguish it from all other worships--that one is liable for it to a capital punishment? You say once, when the usage is to worship thus. Is, then, a verse needed as to this? Is it not written plainly [Deut. xii. 30]: "How did these nations serve their gods? even so will I do likewise"? Say then, once, for such an idol as is not accustomed to be worshipped by bowing, but only occasionally; and once, for such as before which bowing is not used at all"--e.g., Baal Peor; and once, to separate it for capital punishment? Hence we see that he is not in accordance with R. Ami? He said so to give a reason for R. Ami's theory, but he himself does not agree with him.
"And also if he only says, 'Thou art my god.'" R. Na'hman in the name of Rabba b. Abuhu, quoting Rabh, said: As soon as he has said, "Thou art my god," he is culpable. But what news is this? If he means capital punishment, did not the Mishna say so? He means to say that he is liable to bring a sin-offering, if this was said by an error, even according to the rabbis, who require an act. But does not a Boraitha state: One is not culpable unless by acting--e.g., sacrificing, smoking, pouring, or bowing? To which Resh Lakish said: Who is the Tana who holds that bowing is also an act? R. Aqiba, who does not require a mental act--from which it is to be understood that the rabbis do? Rabh also means to say in accordance with R. Aqiba. But is this not self-evident? Does not R. Aqiba say that even an unintentional blasphemer is also liable for a sin-offering? Lest one say that R. Aqiba holds liable a blasphemer because the punishment of korath is mentioned in the Scripture concerning him, but concerning bowing, which is not mentioned, even R. Aqiba frees him from this obligation, he comes to teach us that they are compared. As it reads [Ex. xxxii. 8]: "They have bowed themselves to it, and have sacrificed unto it," etc.
R. Johanan said: If not for the Vav in the word "he-elukha"
(brought thee up) in the above-cited verse (which makes it plural and means that they also took part in the exodus from Egypt), all Israel would be liable to be destroyed. However, in this the following Tanaim differ: Anonymous teachers say: If not for the Vav in the word "he-elukha," etc. Said R. Simeon b. Johai to them: This is still worse, as there is a tradition: He who conjoins the name of Heaven with something else is to be destroyed; and therefore the Vav in "he-elukha," which makes the word plural, shows that they were fond of many gods.
"He who arms, kisses," etc. When Rabbin came from Palestine, he said in the name of R. Elazar that one is not punished with stripes for all them, unless one vows or determines in its name. But let us see! Why is one not punished for all these? Because the negative commandment is not plainly written to this effect, but was included in the negative commandment, "Thou shalt not worship them." And there is a rule that for such a commandment no stripes apply. Why, then, should stripes apply to one who vows? This commandment is also not for mental labor, but for manual. And there is a rule that concerning a commandment in which mental labor is not involved, stripes do not apply. He is in accordance with R. Jehudah, who said that for such a negative commandment stripes do apply. As we have learned in the following Boraitha: It reads [Ex. xii. 10]: "And ye shall not let anything of it remain until morning, and that which remaineth of it until morning ye shall burn with fire." Hence the Scripture came to give a positive commandment (ye shall burn) after a negative commandment (ye shall not leave), to say that for the transgression of such a negative commandment stripes do not apply. So R. Jehudah. R. Jacob, however, says: The reason why stripes do not apply is not because of that which is said by R. Jehudah, but because in this commandment no mental labor is involved, and to such no stripes apply. Hence we see that, according to R. Jehudah, even to such stripes do apply.
"He who vows in its name," etc. Whence is this deduced? From [Ex. xxiii. 13]: "And of the name of other gods ye shall make no mention"--which means, one must not say to his neighbor: Await me in such and such a place, where such and such an idol is to be found. "It shall not be heard out of thy mouth" means, one shall not vow or determine in its name, and shall also not cause others to do so. Another explanation to, "It shall not be heard out of thy mouth," is that it is a warning
to a seducer and to a misleader. But concerning a seducer is it not written plainly [Deut. xiii. 12]: "And all Israel shall hear and be afraid"? Therefore it must be said that it is a warning to a misleader, and also that one shall not cause others to vow or determine in its name. And this is a support to Samuel's father, who said that one must not make partnership with an idolater, as it may be that his partner will owe an oath to him, and he will swear by the name of his idol. And the Torah says: "It shall not be heard out of thy mouth," which means: You shall not cause others to vow in its name.
It happened once that Ula lodged in Khalmbu, and when he came to Rabha, he asked him: "Where did the master lodge last night?" And he said: In Khalmbu. Said Rabha to him: Is it not written: "The name of other gods ye shall not mention"? Rejoined Ula: So said R. Johanan: Every idol which is mentioned in the Scripture, one may mention.
R. Jehudah in the name of Rabh said: It happened to a female heathen who was very sick and vowed that if she recovered she would worship all the idols which were to be found. And after her recovery she did so. When she reached Baal Peor she asked how it should be worshipped. And she was told that worshippers ate mangcorn, drank beer, and then uncovered themselves in its face. And she said: "I would rather suffer the same sickness again than perform such a worship." But yet the house of Israel have not done so, as it reads [Num. xxv. 5]: "That have been joined unto Baal Peor," which means like the cover to a pot. However [Deut. iv. 4]: "But ye that cleave unto the Lord," etc., as a twin of dates. A Boraitha states. "Joined to Peor," as a ring on the finger of a woman, "cleave to the Lord" means, literally.
The rabbis taught: It happened to Saphta b. Als, who hired his ass to a certain female heathen. And when she reached the place of Baal Peor, she said to him: "Await me here, I will enter only for a while and come out." And when she came out, he also said to her: "Await me here, I will also do the same." And to her question: "Are you not a Jew?" he answered: "What do you care?" He then entered, uncovered himself and put the dirt on the nose of the idol. And the ministers of Peor praised him for this, saying that there was no man who worshipped Peor as properly as he did. The sages, however, made him guilty for the proper worship of the idol, although his intention was to disgrace it. And the same is the case if he
throws a stone at Merculis, although with the intention of stoning it, he is nevertheless guilty, for so is the kind of its worship.
R. Menassah went to the city of Turta, and was told that this place is of an idol. And he took up a lump and threw it at it (the idolatrous statue). He was then told that it was Merculis, and he answered that the Mishna states "he who throws a stone at Merculis," i.e., to worship. And when he came to the college he was told that the Mishna means, even if his intention was to stone it. He then said: I will go and take it up. However, he was told that it is the same transgression, for by taking one stone he makes room for another.
MISHNA VIII.: If one gives one of his children to Molech, he is not guilty unless he had transferred him to the servants of Molech and let him pass through the fire. If, however, he had transferred and not passed through the fire, or vice versa, he is not guilty.
GEMARA: The Mishna speaks of idols, and mentions Molech. Said R. Abiu: Our Mishna is in accordance with him who says that Molech is not an idol at all. As we have learned in the following Boraitha: There is no difference whether one has given of his children to other idols or to Molech--he is culpable. R. Eliezer b. R. Simeon, however, maintains: Only if he has done it to Molech he is guilty, but not if to another idol. Said Abayi: R. Elazar b. Simeon and Hanina b. Antiguus have said the same--R. Elazar b. Simeon, in the Boraitha cited; and Hanina, who said in the following Boraitha: Why does the Torah use the term Molech? 1 To say of every one whom they have accepted as a king over them--be it even a piece of wood--one is guilty if he had transferred one of his children for it. Hence we see that, according to him, one is guilty only concerning Molech, but not concerning another idol. Rabha, however, maintains that Simeon and Hanina differ concerning a temporary Molech, as according to R. Simeon one is not guilty on account of such.
R. Janai said: One is not guilty unless he transfers a child to the servants of the idol, as it reads [Lev. xviii. 2]: "And from thy children thou shalt not give to pass through the fire to Molech." And so also we have learned in the following Boraitha: Lest one say that when he passed his child and has not transferred, he should be guilty, therefore it reads, "Thou shalt not give." If he has transferred and not passed through
the fire, he is also not guilty, because it reads, "to pass through the fire." And if one has done both, but not for Molech, one might say he is guilty? Therefore it reads, "to Molech." If one has transferred and passed to Molech, but not through fire, he is also not guilty, because it reads, "through fire." And it is written also [Deut. xviii. 10]: "There shall not be found among thee any one who causeth his son or his daughter to pass through the fire." And we infer one from the other. As there it is mentioned plainly "fire," so here also it is meant fire; and as here is meant Molech, so also there is meant Molech. Said R. Aha b. Rabha: If one has transferred all his children to Molech, he is not guilty, as the verse reads, "and from thy children"--but not all. R. Ashi questioned: How is it if one has passed through the fire a son blind or asleep, or one of his grandchildren? The last question may be answered from the following: It reads [Lev. xx. 3]: "Because of his seed he has given unto Molech." To what purpose was it written? Because in the above-cited verse in Deuteronomy it reads "son" and "daughter," and one might say, but not of grandchildren. Therefore it is written [ibid., ibid. 4]: "When he giveth of his seed," in which grandchildren are included.
Let us see! The Tana begins with verse three  and ends with verse four . He did so because of another teaching. One might say that one is guilty only for legitimate children, but not for illegitimate; therefore it reads in verse four, from his "seeds," which includes all.
Said R. Jehudah: One is not guilty unless he let him pass in the usual manner. What was that? Said Abayi: A row of bricks were placed for passing, and on both sides fire was kindled. Rabha, however, maintains that it was by jumping, as children used to jump on Purim. (Rashi explains that they used to have a pit in which fire was kindled, and the people used to jump over it.)
There is a Boraitha in accordance with Rabha: One is not culpable unless he has passed in the usual manner of worship. However, if he passed it by, not jumping, he is not guilty. He is also culpable only when he passed his descendants; but not if his brother, sisters, father, mother, or even himself. R. Eliezer b. R. Simeon, however, makes guilty him who passed himself. There is no difference whether he has passed to Molech or to any other idol. R. Eliezer b. R. Simeon, however, maintains: To Molech, but not to others.
Said Ula: The reason why R. Elazar makes guilty him who passes himself is because it reads: "bkho"--literally, "in thee," which means "thyself." But do not the rabbis also give attention to the word "bkho"? Is there not a Mishna in Middle Gate: And R. Jehudah said: The reason of it is because it is written "bkho"? There is also another reason--because the verse begins with "although, indeed."
R. Jose b. Hanina said: Three times korath is mentioned concerning idolatry: once for worshipping it as it is done usually; once as not done usually; and once for Molech, although it was not considered an idol. And to him that holds that Molech was also an idol, why is a separate korath needed for it? Is it not included in idolatry? To him who passes his son not in its usual manner (i.e., although he is not put to death by the court, the punishment of korath rests upon him). And to him who holds that he who worships idols--e.g., he sings before one--is also considered blasphemous,--to what purpose is korath mentioned concerning blasphemy? To that which we have learned in the following Boraitha: It reads [Num. xv. 3 1]: "hekorath tekorath"--"hekorath," which means cut off from this world; "tekorath," from the world to come. So R. Aqiba. Said R. Ishmael to him: Is it not written in the preceding verse, "Shall be cut off"? Are there then three worlds? Therefore the expression [in 30] means from this world, and the term "hekorath" means from the world to come; and the expression "tekorath" is not to be considered, as the Torah speaks with the usual language of human beings.
MISHNA IX.: Baal ob (mentioned in the Scripture) is the python that makes the dead speak from his armpit, and Yidoui means one that makes the dead speak from his mouth. These two are to be stoned; and he who queries from them is warned [Lev. xix. 31].
GEMARA: Why does our Mishna count both Baal ob and Yidoui, and in Tract Keritoth the Tana mentioned only Baal ob and omitted Yidouim, etc.? (The discussion here is a repetition from Tract Kheritoth, which is the proper place, where it will be translated.)
The rabbis taught: Baal ob is one who ventriloquizes, and a Yidoui is he who puts a certain bone in his mouth, which speaks from itself.
The rabbis taught: There are two kinds of "ob": one who brings up the dead, and one who questions a dead head. He
who brings up the dead--it appears before him not in the usual manner, but with its feet on top; and on the Sabbath it does not come up at all. But he who does this with the head of one dead answers as usual, and answers also on Sabbath. Also about this, R. Aqiba was questioned by Turnusrupus: Why is this day (of Sabbath) distinguished from all other days? To which Aqiba answered: Why is this man (Turnusrupus) distinguished from all other men? And he answered: Because it is the will of my master (the king). Rejoined R. Aqiba: Sabbath is also distinguished because it is the will of the Lord of the Universe. Said Turnusrupus: You misunderstand me. My question is: Whence do you know that this day is Sabbath? And he answered: From the river of Sabbation (which rests on this day); and it may also be proved from the fact that he who occupies himself with bringing up the dead cannot do his work on Sabbath; and also the grave of your father may prove that the smoke which comes out of it on all week days does not come out of it on all week days does not come out on Sabbath. Exclaimed Turnusrupus: You have disgraced, ashamed, and insulted me.
Is not he who queries an "ob" the same as one who inquires of the dead? Nay! The latter is as we have learned in the following Boraitha: By "inquire of the dead" is meant he who does not take food all day, and while he suffers hunger he goes to a cemetery, and remains there overnight for the purpose that the unclean spirit should rest upon him. And when R. Aqiba used to read this passage, he would weep, saying: Is not an a fortiori conclusion to be drawn from this passage? If one who makes himself suffer from hunger, for the purpose that the unclean spirit should rest upon him, usually succeeds, and the spirit in question rests upon him, so much the more, if one makes himself suffer hunger for the purpose that the pure spirit should rest upon him, should he succeed in reaching his desire; but what can we do if our sins cause that our desire shall not be reached, as it reads [Is. lix. 2]: "But your iniquities have ever made a separation between you and your God"? Said Rabha: If the upright would take care to be clean from any sin whatsoever, they would be able to create a world (and he infers it from the verse just cited). Rabha created a man and sent him up to R. Zera. The latter spoke to him, and he did not answer. Exclaimed R. Zera: I see that thou wast created by one of our colleagues. It is better that thou shouldst be returned to
the earth from which thou wast taken. R. Hanina and R. Oshia were accustomed to sit every eve of Sabbath studying the book of creation, and create a calf like that of the third offspring of a living cow, and they used to consume it on Sabbath.
The rabbis taught: An observer of times is, according to R. Simeon, he who passes the outcome of a certain male over his eye (for the purpose of witchcraft); according to the sages, it is he who dazzles the eyes. R. Aqiba, however, said: The one who reckons times and hours, saying: This day is good to go on the road, such a day is good to buy things, on the eves of the Sabbatic years the wheat is fine, such and such a time is good for picking peas as they will not become verminous.
The rabbis taught: An enchanter is he who says: "My bread has fallen from my mouth to-day, and it is a bad sign"; or, "My cane has fallen from my hands"; or, "My son called me up from my back"; or, "A robin is calling me"; or, "A ram has crossed my way"; or, "A snake is on my right, a fox is on my left, and all this is a bad sign." Or, if one says to a collector: Do not begin with me, as this will be a bad sign for me. And the same is it if he says: "To-day is the first day of the month," or, "It is the Sabbath eve, and if I should pay at this time I will have a bad week" or "a bad month." And the same is the case with them who enchant with cats, birds, and fish (i.e., I will not begin this thing because a cat has crossed my way, etc.). So is the teaching of the rabbis.
MISHNA X.: He who violates the Sabbath with such a labor as is liable to korath if done intentionally, and to a sin offering if unintentionally.
GEMARA: From this we see that there are violations of Sabbath to which neither korath nor a sin-offering apply. What are they? The limit of the cities (Te'humi), in accordance with R. Aqiba; and kindling, according to R. Jose.
MISHNA XI.: He who curses his father or mother is not punished with a capital punishment, unless he curse them by the proper Name of God. If he has done so with a pseudonym, according to R. Mair he is guilty, and according to the sages he is not.
GEMARA: Who are the sages? R. Mnahem b. Jose of the following Boraitha, who said thus: It reads [Lev. xxiv. 16]: "When he pronounceth the holy name," etc. Why is here repeated "the holy name"? It should read: "If he blaspheme,"
etc. To teach that in the case of cursing father and mother one is not guilty unless he do so with the Holy Name.
The rabbis taught It reads [ibid., xx. 9]: "Every one," instead of "one." This came to include a daughter, or an hermaphrodite, or an andogyn. "That curseth his father and his mother." But whence do we know that the same is the case when he curses his father only, or his mother only? Therefore it reads farther on, "his father and his mother has he cursed." Hence the word "cursed" corresponds with the word mother"; and in the beginning of the verse the word "cursed" corresponds with "father," which is to be explained as that he is equaly guilty if he has cursed his father or his mother. So is the decree of R. Jashia. R. Jonathan, however, said: The beginning of the verse can be explained that it means both together, and also one or the other; and in such a case the applicability is to each of them, unless the verse itself explains that both together are meant. "Shall be put to death"--by stoning! But perhaps with some other kind of death mentioned in the Scripture? It reads here, "His blood shall be upon him," and elsewhere it is written, "Their blood shall be upon them." As there it means stoning, the same is it here. But here we have heard of the punishment. Where is the warning? [Ex. xxii. 27]: "The judges thou shalt not revile, and a ruler among thy people thou shalt not curse." "If one's father were one of the two, he is included; but if he was neither a judge nor a Nasi, whence do we know that the same is the case? This can be inferred from the construction of the leading rule in both cases (i.e., one who is to be respected must not be cursed, although the nature of respecting them is not equal), as concerning a judge we are commanded to follow his decision, which is not the case with a Nasi; and concerning the latter We are commanded not to rebel against him, which is not the case with a judge. However, in one case they are equal, in that they are of "thy people," and thou must not curse them. The same is the case with the father, who is also of "thy people" and must be respected by thee. Hence you are warned not to curse him. And lest one say that, after all, we can infer nothing from the case in which they are equal, as their dignity is the reason of their equality, which is not the case with a common father, concerning this it reads [Lev. xix. 14]: "Thou shalt not curse the deaf"--from which we see that the verse speaks of the unfortunates of "thy people." And lest one say that this is also
different, as the misfortune is the reason, the above case of judge and Nasi proves that this is not so. And again, their dignity is the reason? The case of the deaf proves that it is not so. Hence, although the reason of the one is not similar to that of the other, in one thing, however, they are equal, in that they are of "thy people" and must not be cursed. The same is the case with his father. And still, lest one say that, after all, the three above mentioned are distinguished, which is not the case with the father, it may be said that I the reason is because of distinction, it would not be necessary for the Scripture to write all the three, as a judge and a death or a Nasi and a death would suffice. Why, then, all the three? As it is not needed for itself, apply it to a common father. And all this is correct to him who explains the word "Elohim" in the above-cited verse [Ex. xxii.] with "judges"; but to him who explains the word "Elohim" as meaning God, what can be said? For there is a Boraitha: Elohim in this verse is common, and means "judges." So R. Ishmael. R. Aqiba, however, maintains that Elohim is "holy." And there is another Boraitha: R. Eliezer b. Jacob said that this verse is a warning against blasphemy. He who holds that the word Elohim here is common, must say that the holiness is inferred from this passage (by drawing an a fortiori conclusion--if one is warned not to curse a human judge, so much the more is he warned not to curse the Holiness), as we do not find any other warning besides; and he who holds that the word Elohim is "holy," the case of a commoner may also be inferred--from the double Lamed in the word "tekhalel" (curse), which could be expressed "tekhal" with one Lamed.
MISHNA XI.: 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. Should it happen that two had sinned with her, the first is to be stoned and the second choked.
GEMARA: The rabbis taught: It reads [Deut. xxii. 23]: "if a damsel"--not a vigaros; "a maiden"--not one who had already known man; "betrothed"--not married. And [ibid., ibid. 21] it reads, "in her father's house," excluding if the father had already transferred her to the messengers of her husband.
Said R. Jehudah in the name of Rabh: This is in accordance with R. Mair. The sages, however, say: A betrothed damsel,
even if she is still a minor. Said R. Aha of Diphthi to Rabhina: Whence do you know that the Mishna is in accordance with R. Mair and excludes a minor--perhaps it is in accordance with the rabbis excluding a vigaros only? And he answered: If so, the Mishna should state that he is not guilty but as concerning pression means to exclude a minor also; and about this no more discussion.
R. Jacob b. Adda questioned Rabh: In accordance with R. Mair, if it happened one had sinned with a betrothed minor, does he exclude him from any punishment, or from stoning only? And he answered: Common sense dictates from stoning only. But is it not written [ibid., ibid. 22]: "Shall both of them die," which is explained elsewhere, that it means, provided both were alike concerning age? And Rabh kept silent. Said Samuel: I do not understand why Rabh was silent, and did not refer him to ibid., ibid. 26, which reads: "He shall die alone"?
In this point Tanaim differ. "Both shall die" means, provided both were alike concerning age. So R. Jashia. R. Jonathan, however, said: From the verse  is inferred that he alone must be put to death. But what does R. Jashia infer from the verse, "He alone," etc.? That which we have learned from the following Boraitha: If ten men knew her while she was still a virgin, all of them are to be stoned. Rabbi, however, maintains that only the first one is to be stoned, and all the others choked, as thus it reads: "And the man that lay with her shall die alone." What does it mean? Said R. Huna b. R. Jehoshua: Rabbi holds with R. Ishmael that a betrothed damsel is to be burned, but not one married. And the verse which reads about one betrothed is to be explained thus: Only the beginner is to be burned, but all others are to be choked. Said R. Bibi b. Abayi: Our master, R. Joseph, does not say so. But that Rabbi holds with R. Mair, who said that if the daughter of a priest was married to one who was prohibited from marrying her, and she has sinned, her death is choking. And Rabbi meant to say thus: If the beginning of her profanation was sin, then she is to be burned; but if she was already profaned by an illegal marriage, she is to be choked. And his expression, "And so also it reads: 'He shall die alone,'" is not to be taken particularly, but as a remark.
MISHNA XII.: A seducer means one who is himself a commoner and seduces a commoner--e.g., he says: There is an
idol in such and such a place which so and so eats, so and so drinks, and so and so does good, and so does harm.
Concerning all who are liable to capital punishment biblically, it is not allowed to hide witnesses except in this case: If, e.g., he said the above to two persons, they are his witnesses--they bring him up to the court, and they themselves stone him. If, however, he said it only to one, he may say: I have some colleagues who will also follow your advice, if you will say the same to them. But if he is shrewd, and does not want to talk in the presence of two persons, they may hide witnesses behind a fence, and he may say to him: Repeat to me what you said at first. And if he repeats, he may say to him: How can we leave our Heavenly Father and go to worship idols of stone and wood? If he retracts--well and good. If, however, he answers: This will be good for us and also is our duty, the witnesses who are hidden behind the fence may bring him to court and stone him.
A seducer is considered he who says: I will worship; I will go and worship; Let us go and worship; I will sacrifice to such and such an idol; or, Let us go and sacrifice; I will smoke incense before it; I will go and smoke; Let us go and smoke; I will pour wine before it; I will go and pour; Let us go and pour; I will bow myself; I will go and bow; Let us go and bow.
GEMARA: The Mishna states: A seducer means a commoner. But how would it be if he should say: I am a prophet, and tell you to do so in the name of the Lord? Choking would apply. And also "he seduces a commoner" (individual). But how if he should seduce many? Then also choking would apply and not stoning. We see, then, that our Mishna is in accordance with R. Simeon of the following Boraitha: To a prophet who had misled, stoning applies. R. Simeon, however, said: Choking. To the misleader of a misled town, stoning applies, according to R. Simeon, choking. How, then, will be understood the succeeding Mishna, which states: A misleader is named he who says, "Let us go and worship idols"? To which R. Jehudah in the name of Rabh said: It speaks of the misleader of a misled town, who is to be stoned, which is in accordance with the rabbis. Hence our Mishna is in accordance with R. Simeon, and the succeeding Mishna in accordance with the rabbis. Said Rabhina: Both are in accordance with the rabbis; and by the expression, "he seduced a commoner," he does not mean to exclude a majority. But it was said in
the Mishna, "not only"--i.e., not only is he to be stoned who seduces a majority, but even a single commoner. And R. Papa said: Even the beginning of the Mishna, "the seducer is a commoner," does not mean to exclude a prophet, as it was supposed, but it means to say: He is a commoner idiot, to whom hiding witnesses is allowed, which is not the case with all other criminals. And how used they to do with such a person? They used to light a candle in the inner chamber, engaging him with talk, and the witnesses were placed in the outer chamber so that they should see him and hear his voice, while he could not see them; and there the person whom he attempted to seduce tried to make him repeat, as stated above in the Mishna.
MISHNA XII.: By a misleader is meant one who says: Let us go and worship idols. A conjurer is liable to be stoned only when he did an act, but not if he dazzled the eyes. R. Aqiba said in the name of R. Jehoshua: As, for instance, if there are two who gather cucumbers from a field by enchantment--one of them is liable to a capital punishment and one of them is entirely free. If one has really gathered all of them to one place by witchcraft, he is to be stoned; and the other, who did so only by dazzling the eyes, but in reality the cucumbers remained in their place, is entirely free.
GEMARA: R. Jehudah in the name of Rabh said: The Mishna speaks of the misleader of a misled town. "A conjurer," etc. The rabbis taught: It reads: "A witch." There was no difference whether male or female--why, then, the term "witch"? Because in most cases women used to be engaged in witchcraft. What kind of death applies to them? R. Jose the Galilean said: It reads [Ex. xxii. 17]: "Thou shalt not suffer a witch to live"; and it reads [Deut. xx. 16]: "Shalt thou not let live a single soul." As there it is meant by the sword, the same is the case here. R. Aqiba, however, said: It is to be inferred from [Ex. xix. 13]: "It shall not live." As there stoning is meant, the same is the case here. Said R. Jose: My analogy is from "techaiah"--"let not live" (a female), while your analogy is from "yechaiah"--"shall not live" (a male). And he answered: My analogy is to infer Israel from Israel, to whom many kinds of deaths are prescribed, while according to your analogy, Israel from the descendants of Noah should be inferred, and there is only one death prescribed for descendants of Noah. Ben Azai, however
said. Ex. xxii. 17 is to be inferred from the next verse  "Whosoever lieth with a beast," etc. As to this stoning applies, the same is the case here. Said R. Jehudah. to him: Because this verse is near to the other, therefore the witch should be stoned? According to my opinion there is another reason. Ob and Yidoui ought to be included in the case of conjurers--why, then, does the Scripture separate them? Only for the purpose of comparing other conjurers to them. As to them stoning applies, so does it to all conjurers.
According to R. Jehudah: Let Ob and Yidoui be considered as two verses which command one and the same. And there is a rule that from such nothing is to be inferred. Said R. Zecharias: Infer from this that R. Jehudah does not hold this theory and maintains that from such it may be inferred. It reads [Deut. iv. 35]: "There is none else besides him." Said R. Hanina: Even witchcraft has no effect against a heavenly decree. There was a woman who tried to take earth from beneath the foot of R. Hanina. And he said to her: If you think you will succeed in affecting me with your witchcraft, go on and do so, as I am not afraid. It reads: "There is none else besides Him." Is that so? Did not R. Johanan say: It may happen that witchcraft may affect even against heavenly decrees? With R. Hanina it was different, as his strength was great, being righteous all his life. Aibu b. Nagri in the name of R. Hyya b. Abba said: In Ex. vii. 11 it reads, "blahatehem," and in ibid. viii. 3 it is written, "blatehem." The latter means by the act of demons, and the former by the act of sorcery. And so also is it expressed in Gen. iii. 24, "lahat," or the sword which revolveth (revolveth by itself, which looked like witchcraft). Said Abayi: A conjurer who is particular to use a utensil, it is by a demon, and he who is not particular, it is by witchcraft.
He said again: The Halakhas of witchcraft are similar to the Halakhas of Sabbath. There are some to which stoning applies; there are some which are not allowed to start with, but if, nevertheless, one has done them, he is free; and some are allowed even to start with. To him who did an act by witchcraft, stoning applies. To dazzle the eyes is not allowed to start with, but if one did, he is free. And it is allowed to start with, as said above. R. Hanina and R. Oshia were accustomed to create a calf, etc.
Said R. Ashi: I have seen the father of a certain man Karna
scatter strips of silk from his nose. It reads [Ex. viii. 15]: "Then said the magicians of Pharaoh, This is the finger of God." Said R. Elazar: Infer from this that a demon is not able to produce a creation the size of which is less than a barley. Said R. Papa: They are not able to create even the size of a camel; but if they needed it, they got it from far places, which they could not do with smaller creations.
Said Rabh to R. Hyya: 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. Said R. Hyya to him: Did you see after it stood up, that the place was dirty from blood and dust? There was nothing. Hence it was only a dazzling of the eyes.
It happened that Zera was in Alexandria of Egypt, and bought an ass. Afterward, when he carne (to a river) to let the ass drink, it disappeared (the charm was broken), and there stood a landing board. And he was told: If you were not Zera, your money would not be returned, as there is no one who buys something here and does not try it on water. Janai happened to stop at a certain inn and asked for water. And he was supplied with sthitha (water mixed with flour), and he noticed that the woman who brought it mumbled. He poured out a little and a serpent came out of it. And then he said to her: I drank from your water, now you may also drink from mine. She did so and became an ass. He then rode upon her to the market. And her associate, who recognized the witchcraft absolved her, and then every one saw that he was riding on a woman.
It reads [ibid., ibid. 2]: "And the frogs came up." Said R. Elazar: It was only one frog which multiplied over all Egypt with its offspring. In this point Tanaim differ. R. Aqiba said the same as Elazar. Said Elazar b. Azariah to him: Aqiba, what have you to do with Haggadah? Leave it, and show forth thy study in the difficulties of Negaim and Ohaloth. It was only one frog to whose croaking all other frogs were gathered.
"R. Aqiba said," etc. Did R. Aqiba indeed learn this from R. Jehoshua? Is there not a Boraitha: When R. Eliezer became sick, R. Aqiba and his colleagues came to make him a sick-call. He was under a canopy, and they were placed in his palace. That day was an eve of Sabbath, and Hurcanos, his son, entered to undress his phylacteries. 1 His father rebuked
him, and he went out as if he had been under the ban, and said to his colleagues: It seems to me that the mind of my father is not clear. And R. Eliezer, who heard this, said to them: And I think that the minds of both his mother and himself are unsound, as they occupy themselves with undressing phylacteries on account of which the Sabbath would not be violated, even if they were to remain upon him the whole Sabbath, while so long as they have not as yet prepared other things for Sabbath, which would be a violation subject to a capital punishment if done on Sabbath.
When the above-mentioned sages saw that his mind was clear, they approached him a distance of four ells, and became seated. He then questioned them: To what purpose is your call? To which they answered: We came to learn Torah from you. And to his question: Why have you not come until now? They answered: We had no time. He then exclaimed: I wonder if these people will die a natural death! Said Aqiba to him: And what will be my lot? And he said: Yours will be still harder than theirs. He then took his two arms, put them on his heart, and said: Woe to ye! my two arms, which are as two parchments of the Holy Scrolls, of which nothing can be read when they are rolled together (he meant that when he should die, all his wisdom would go with him, as there were none to whom to teach it). I have studied much and taught much. I have studied much, and have not diminished from the wisdom of my masters even to the extent of what a dog laps from the sea. I taught much, and my disciples have not diminished from my wisdom--even as the painting pencil which is inserted in a tube. And not this only, but I have learned about three hundred Halakhas as to planting cucumbers, and there was no man who could question me something concerning them except Aqiba b. Joseph. As it once happened, I was on the road with him, and he said to me: Rabbi, teach me something about planting cucumbers. And I said something, and the whole field was filled with cucumbers. And he said to me: Rabbi, with this you taught me the planting of them; now teach me the removing of them. And I said something and all were gathered to one place. Hence we see that he had learned this of R. Eliezer, and not of R. Jehoshua? He learned it from R. Eliezer, but did not understand thoroughly. But thereafter, however, he learned this from R. Jehoshua thoroughly, and it remained in his mind. But how could he do so? Have
we not learned in a Mishna that he who does an act with witchcraft deserves a capital punishment? To learn it is different. As the Master said: It reads [Deut. xviii. 9]: "Thou shalt not learn to do"--which means: Thou must not learn to do, but thou mayst learn it to understand it for the purpose of deciding cases.Footnotes
150:1 Mishnas mentioned in the text will be translated in their proper places.
151:1 The text here is very complicated, and Rashi, who tries to explain it at length against his method, admits that there may be objections to it, and maintains that the reason of betrothed and married does not hold good. But the basis is, what is said above, that stoning applies to a blasphemer, etc., who laid their hands on the main principle. We have done our best to give an idea of the text to the reader.
151:2 Here also is repeated why stoning is more rigorous than the two others, and the same reasons are given, which it is not necessary to repeat.
156:1 Leeser translates "own lives" according to its sense. We, however, translate it literally, according to the Talmud.
160:1 The text reads, "לאשת אחרים," literally, "the wife of many strangers," and so it means. The explanation of Rashi that the word acherim means a Samarite, is probably because he did not know of the existence of such a sect who live in common with their wives. It may also be that the word "Samaritan," in Rashi, was corrected by the censor instead of "heathen" or idolator. However, this is certain, that the expression "acherim" in the Gemara is original, and if it meant a heathen or a Samarite, it would not hesitate to say so. It therefore seems to us, that our translation is correct.
163:1 For the explanation of a pleonastic term we refer the reader to Mielziner's "Introduction to the Talmud" (page 150).
164:1 The term "as they lie," translated by Leeser, is not correct, as it reads "mishkhbey," which is plural and means "lyings," from which the Gemara infers that there are two lyings regarding a woman.
166:1 We deem it expedient not to translate about two pages of the text preceding the next Mishna, treating of miserable crimes with men and animals, and giving the discussion with questions and answers, it would be undesirable to express in the English language. However, it seems to us important to give the opinion of Rabh: "A minor who was over nine years and one day is guilty, and may be punished the same as one of age, if he commit a crime with man, or an animal of any kind and age." (And there is a Boraitha which agrees with him.) This is all that we think proper to take from the text.
168:1 It would be of no use to quote the verse, as every word in it is used for an analogy of expression of the Hebrew terms. There, is besides, a difference of opinion among the Amoraim, which expression is to be used for an analogy, and what it means; and to translate it all, we would have to fill our page with Hebrew words and their explanations. After all, it would be of no importance, as the fact that to the children of Noah seven commandments were given is traditional.
170:1 We do not understand this similarity, although Rashi in his commentary tries to explain it at length. It is so complicated as to be untranslatable into English.
170:2 The term in Hebrew is "be-adam," literally, "in the man"' Leeser, how, ever, translates according to the sense.
172:1 The text farther on discusses about a proselyte, whose mother embraces Judaism when he was yet an embryo--which relationship is allowed to him and which not; also if a heathen is allowed to marry his daughter; if a slave may marry his sister or daughter, etc.--all of which, as we deem it not fit for translation, we omit.
172:2 Leeser's translation does not correspond.
173:1 The term in Hebrew is "obed"; literally, "worshipped," and also "works up"; and ebed means "a slave." Hence his analogy.
176:1 It is almost the first time that we have translated against our method, announced in the third of the explanatory remarks on back of title pages, the reason of which we hope the render will understand.
178:1 This is explained in the Gemara by R. Jeremiah.
178:2 Leeser has omitted this; we do not know the reason why.
187:1 The term for king in Hebrew is melech.
198:1 See our "Phylacterien Ritus," p. 49, footnotes.
Commentary on Law, Oral Tradition
BOOK VIII, Sanhedren, and Legal Code PART 2; Jewish Thought evolution from Moses and Mount Sinai through Years of Jesus, to AD 200;
p. 201CHAPTER VIII.
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