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NEW    EDITION 


BABYLONIAN  TALMUD 


©riginal  Zcxt,  3£&fte&,  Corrccte&,  f  ormulate&,  an5 
Xlcanslated  into  JBnglisb 


MICHAEL  L.   RODKINSON 


SECTION   JURISPRUDENCE   (DAMAGES) 

TRACT   SANHEDRIN 


Volumes  VII.  and  VIII.  {XV.  and  XVI.) 


NEW  YORK 

NEW  TALMUD   PUBLISHING   COMPANY 

1 1 1 7  Simpson  Street 


EXPLANATORY   REMARKS. 

In  our  translation  we  adopted  these  principles: 

1.  Tenan  of  the  original — We  have  learned  in  a  Mishna;  Tania — We  have 
learned  in  a  Boraitha;  Itemar — It  was  taught. 

2.  Questions  are  indicated  by  the  interrogation  point,  and  are  immediately 
followed  by  the  answers,  without  being  so  marked. 

3.  When  in  the  original  there  occur  two  statements  separated  by  the  phrase, 
Lishna  achrena  or  Waibayith  Aetna  or  I kha  <f'a/«r?  (literally,  "otherwise  interpreted"), 
we  translate  only  the  second. 

4.  As  the  pages  of  the  original  are  indicated  in  our  new  Hebrew  edition,  it  is  not 
deemed  necessary  to  mark  them  in  the  English  edition,  this  being  only  a  translation 
from  the  latter. 

5.  Words  or  passages  enclosed  in  round  parentheses  (  )  denote  the  explanation 
rendered  by  Rashi  to  the  foregoing  sentence  or  word.  Square  parentheses  [  ]  contain 
commentaries  by  authorities  of  the  last  period  of  construction  of  the  Gemara. 


Copyright,  1902,  bv 
MICHAEL  L.  RODKINSON. 


TO   HIM 

"WHO   RANKS  AMONG   THE    FIRST    PHILANTHROPISTS   OF 

OUR  CO-RELIGIONISTS 

ABRAHAM    ABRAHAM,  Esq. 

IN    RECOGNITION    OF    HIS    GENEROUS    DEEDS    TOWARD    PROMOTING 

LITERATURE    IN    GENERAL    AND    JUDAISM    IN    PARTICULAR, 

THIS    BOOK    IS   MOST    RESPECTFULLY    DEDICATED    BY 

THE    TRANSLATOR 

MICHAEL  L.  RODKINSON 


New  York 

IN  THE  Month  of  Elul,  5662 

(September  i8th,  1902) 


A   WORD    TO    THE    READER. 

Many  books  have  been  written  by  the  scientists  of  the  last 
century,  and  many  lengthy  articles  have  appeared  in  the  vari- 
ous periodicals,  concerning  the  Jewish  high  court,  and  this  tract, 
which,  if  extracts  were  given,  would  make  an  entire  bulky 
volume  in  itself.  However,  we  deem  it  best  to  give  the  reader 
the  information  where  these  are  to  be  found.  The  time  dur- 
ing which  the  Sanhedrin  were  established  is  the  main  topic  of 
their  discussions.  Zunz,  for  instance,  gives  the  time  from 
King  Simeon  of  the  Maccabees.  Jost  states  that  it  was  from 
the  period  of  Hyrcan.  And  an  anonymous  writer  in  "  Israel- 
itische  Annalen,"  Vol.  I.,  pp.  108-134,  maintains  that  they  were 
established  at  an  exceedingly  earlier  date,  and  that  the  Greek 
name  "  Sanhedrin  "  was  changed  during  the  time  of  the  second 
Temple.  At  all  events,  Schiirer,  in  his  "  Jiidische  Geschichte," 
wrote  a  lengthy  article  on  this  subject,  in  Vol  H.,  from  p.  188 
to  240  (where  there  is  to  be  found  a  bibliography  of  the  subject), 
concluding  with  his  opinion  that  the  high  court  began  at  an  ear- 
lier time.  Z.  Frankel,  too,  in  his  article,  "  Der  gerichtliche  Be- 
weis,"  Berlin,  1848,  claims  that  the  establishment  of  the  jury  in 
the  entire  civilized  world  was  taken  from  the  Sanhedrin.  All 
this  was  written  in  Germany.  An  English  book  by  Rabbi  Men- 
delsohn also  treats  upon  this  topic.  We,  too,  will  have  some- 
thing to  say  concerning  this  in  our  forthcoming  "  History  of 
the  Talmud."  We  are  inclined,  in  many  respects,  however, 
to  accept  the  opinion  of  Reifmann,  given  in  his  Hebrew  book, 
"  Sanhedrin,"  Warsaw,  1888.  He  says  that  courts  were  even 
established  in  the  days  of  Noah,  the  judges  of  which  were  Shem, 
Abraham,  Isaac,  and  Amram,  continuing  until  Moses.  He, 
in  turn,  estabHshed  a  court  of  seventy  judges,  and  from  that 
time  the  Supreme  High  Court  was  of  that  number  (seventy- 
one,  including  Moses),  and  thereafter  supreme  courts  of 
twenty-three,  and  courts  of  three,  were  established  at  all  times, 
and  wherever  the  Jews  resided ;  the  sages  of  the  second  Temple 
naming  these  courts  "  great  "  and  "  small  "  Sanhedrin.  Reif- 
mann's  reasons  are  gathered  from  the  post-biblical  literature, 
and  are  based  upon  the  Bible.  According  to  him,  the  three 
judges  had  to  decide  civil  cases  only,  the  twenty-three,  crimi- 


vi  A  WORD   TO   THE   READER. 

nals  and  capital  punishments,  and  the  seventy-one  were  a 
political  body,  who  were  to  decide  also  the  great  events;  as, 
for  instance,  an  entire  tribe,  or  the  princes  and  heads  of  tribes. 
We,  however,  would  say  that  the  court  of  three  had  also  to 
decide  criminal  cases  to  which  capital  punishment  did  not  apply. 
So  it  seems  to  us,  from  this  tract,  p.  212  of  the  Talmud,  that  a 
stubborn  and  rebellious  son  was  punished  with  stripes  by  a 
court  of  three,  before  being  finally  sentenced  to  death  by  the 
court  of  twenty-three. 

Reifmann  also  quotes  from  "  Midrash  Aggada,"  that  be- 
fore prophesying  a  prophet  was  obliged  to  get  permission 
from  the  Sanhedrin,  who  previously  tried  him  whether  he  was 
a  true  prophet  or  not  We  may  here  add  that  this  contradicts 
the  Talmud,  for  it  says  that  to  recognize  a  true  prophet  was 
by  demanding  a  sign,  p.  260,  and  if  the  prophet  would  have 
been  obliged  to  get  the  permission  of  the  Sanhedrin,  this  would 
certainly  be  mentioned  in  the  Talmud  instead. 

This  is  as  much  as  we  have  to  say  in  regard  to  the  time 
and  name,  and  that  the  Sanhedrin  ceased  about  forty  years 
previous  to  the  destruction  of  the  Temple.  At  the  same  time 
we  would  call  the  attention  of  the  readers  to  the  fact  that  this 
tract  distinguishes  itself  from  all  others  in  Halakha  as  well  as 
in  Haggada.  Aside  from  the  many  strange  explanations  of 
the  verses  of  Scripture,  which  are  not  used  in  other  extracts,  it 
says  plainly  that  there  are  numerous  laws  written  in  the  Pen- 
tateuch which  have  never  occurred,  and  never  will  occur,  but 
that  they  were  written  merely  for  study.  The  Haggada  also 
distinguishes  in  taking  the  power  to  judge  upon  the  Bible  per- 
sonages if  they  are  to  have  a  share  in  the  world  to  come,  and 
also  in  criticism  of  their  acts,  even  of  the  most  holy  of  them. 
This  is  self-evident  that  the  later  commentaries,  and  especially 
the  cabbalists,  interpreted  the  Haggada  after  their  ways.  We, 
however,  have  translated  it  almost  literally,  with  an  effort  to 
make  it  in  some  respects  intelligible  to  the  general  reader,  and 
have  also  added  footnotes,  where  we  deemed  it  necessary.  And 
we  may  say  that  the  real  student  will  find  much  pleasure  if 
he  will  devote  his  special  attention  to  this  tract. 

For  this  purpose  we  have  made  from  this  celebrated  tract  a 
double  volume,  as  we  deem  it  will  please  the  readers  and  the 
students,  and  will  also  equalize  the  size  of  the  volumes. 

M.  L.  R. 

September  16,  1902. 


CONTENTS. 


A  Word  to  the  Reader v 

Synopsis  of  Subjects xi 

CHAPTER   I. 

Rules  and  Regulations  concerning  the  Appointment  of 
Judges  in  Civil  and  Criminal  Cases.  Which  are  con- 
sidered Civil  and  which  Criminal.  How  many  are  needed 
TO  the  Intercalation  of  a  Year  and  of  Months  ;  to 
Appraise  Consecrated  Real  Estate  as  well  as  Movable 
Properties;  and  if  Among  the  Appraisers  Must  be  Priests, 
AND  IF  so  How  Many.  The  Number  of  Persons  Needed 
TO  Add  to  the  City  from  the  Suburbs  of  Jerusalem. 
What  Majority  is  Needed  to  Accuse  and  what  to  Acquit. 
How  Many  People  Must  be  in  a  City  that  a  Court  of 
Twenty-three  Judges  Should  be  Established   .         .         i 

CHAPTER   n. 

Rules  and  Regulations  concerning  the  High-Priest:  If  he 
may  Judge  and  be  Judged,  be  a  Witness  and  be  Witnessed 
Against  ;  the  Laws  Regarding  a  Death  Occurring  in  his 
Family  and  the  Custom  of  the  Condolence.  The  Same 
Rules  concerning  a  King.  Regulations  as  to  what  a 
King  May  and  May  not  Allow  himself  :  how  many  Wives 

AND    HOW  many    StABLES    FOR    HORSES    HE    MAY  HAVE  ;     HOW  HE 

Must  be  Respected  and  Feared  by  his  People,  etc.     .        43 

CHAPTER   III. 

Rules  and  Regulations  concerning  the  Qualification  or  Dis- 
qualification OF  Judges  and  Witnesses  who  may  Decide 
upon  Strict  Law  and  who  in  Arbitration.  When  a  Rejec- 
tion against  Judges  and  Witnesses  may  or  may  not  take 
place.  Of  Relatives  that  are  Disqualified  and  those 
that  are  not.  How  the  Witnesses  should  be  Examined  in 
Civil  Cases.  Until  what  Time  New  Evidence  may  or  may 
NOT  Affect  a  Decision  Rendered  ....  64 
vii 


viii  CONTENTS. 

CHAPTER  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 97 


CHAPTER  V. 

Rules  and  Regulations  concerning  Preliminary  Queries,  Ex- 
amination,    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  by  Added,  if  they  cannot  Come  to 
any  Conclusion 115 


CHAPTER  VI. 

Rules  and  Regulations  concerning  the  Execution  by  Ston- 
ing 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  Per- 
formed        126 


CHAPTER   VII. 

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  Con- 
cerning Blasphemy  Should  be  Conducted.  Concerning 
those  who  Transfer  their  Children  to  Molech  ;  Familiar 
Spirits,  etc.  Concerning  Cursing  Father  and  Mother, 
Seducers  and  Misleaders,  etc.      .....     149 


CONTENTS. 


CHAPTER   VIII. 

Rules  and  Regulations  concerning  a  Stubborn  and  Rebel- 
lious Son.  At  What  Age  and  What  Has  He  To  Do  to 
be  Charged  as  Such?  How  is  it  if,  e.g.^  his  Father  Con- 
demns HIM,  but  not  his  Mother,  or  vice  versa.  If  One 
of  his  Parents  were  Lame  or  Blind,  etc.  If  he  Runs 
Away  before  the  Decision  was  Rendered.  Concerning 
Burglary  and  if  a  Burglar  Deserves  Capital  Punish- 
ment, must  Pay  the  Damage  Caused  by  Breaking  In       201 

CHAPTER   IX. 

Rules  and  Regulations  concerning  Those  to  Whom  Burning 
AND  Those  to  Whom  Slaying  Applies.  Who  is  Considered 
A  Murderer  Deserving  Capital  Punishment  and  Who  is 
TO  be  Exiled.  Those  who  Recovered  after  they  were 
Diagnosed  to  Die  ;  Killing  Some  Other  One  instead  of 
Those  Whom  He  had  Intended 222 


CHAPTER   X. 

Rules  and  Regulations  concerning  those  to  Whom  Choking 
Applies.  Concerning  a  Rebelling  Judge  ;  what  shall  be 
His  Crime  for  which  He  is  to  be  Executed  ;  at  which 
Place  and  with  which  Kind  of  Death.  And  concerning 
A  False  Prophet 245 

CHAPTER  XI. 

The  Haggadic  Part  about  Resurrection  ;  Shares  in  the 
World  to  Come  ;  and  about  the  Messiah,  etc.    .         .     265 


SYNOPSIS   OF  SUBJECTS 

OF 

TRACT  SANHEDRIN  (SUPREME 
COUNCIL). 


CHAPTER    I. 


MiSHNA  /.  To  which  cases  judges  are  needed  to  decide,  and  to  which 
commoners  ;  which  three,  five,  twenty-three,  and  seventy-one.  The  Great 
Sanhedrin  consisted  of  seventy-one,  and  the  Small  of  twenty-three.  How  many 
a  city  should  contain,  that  it  should  be  fit  for  a  supreme  council.  If  one 
were  known  to  the  majority  of  the  people  as  an  expert,  he  alone  might  decide 
civil  cases.  A  permission  from  the  Exilarch  holds  good  for  the  whole 
country  (of  Babylon  and  also  for  Palestine)  ;  from  the  Prince  in  Palestine, 
for  the  whole  of  Palestine  and  Syria  only :  he  may  teach  the  law,  decide 
civil  cases,  and  may  also  decide  upon  the  blemishes  of  first-born  animals. 
He  (a  priest)  saw  a  divorced  woman  and  married  her,  and  with  this  he 
annulled  his  priesthood.  He  erred  in  his  opinion — e.g.,  there  were  two, 
Tanaim  and  two  Amoraim  who  differed  in  a  case,  and  he  decided  the  case 
according  to  one.  There  are  three  Tanaim  who  differ  concerning  arbitra- 
tion. When  the  decision  is  already  given  in  accordance  with  the  strict  law, 
an  arbitration  cannot  take  place.  May  or  may  not  a  judge  say,  "  I  do  not 
want  to  decide  this  case  "  ?  and  under  what  circumstances  t  Is  mediation  a 
meritorious  act,  or  is  it  only  permitted  ?  There  were  many  who  used  to  say 
maxims  of  morality,  and  Samuel  found  that  they  were  only  repetitions  of 
verses  in  the  Scriptures.  "Say  unto  wisdom.  Thou  art  my  sister,"  means,  if 
the  thing  is  certain  to  you  as  that  it  is  prohibited  for  you  to  marry  your 
sister,  then  you  may  say  it ;  but  not  otherwise.  If  one  appoints  a  judge  who 
is  not  fit  to  be  such,  he  is  considered  as  if  he  were  to  plant  a  grove  in  Israel. 
The  court  shall  not  listen  to  the  claims  of  one  party  in  the  absence  of  the 
Other  (in  civil  cases).  "You  shall  judge  righteously"  means,  you  shall  de- 
liberate the  case  carefully,  and  make  it  just  in  your  mind,  and  only  thereafter 
may  you  give  your  decision  :  "For  the  judgment  belongeth  to  God."  The 
Holy  One,  blessed  be  He,  said  :  "  It  is  the  least  for  the  wicked  to  take  away 
money  from  one  and  give  it  to  another  illegally,"  etc.  Is  warning  needed  to  a 
scholar  ?  Where  is  the  hint  that  collusive  witnesses  are  to  be  punished  with 
stripes  ?  Punishment  of  stripes  is  not  applied  to  those  who  do  no  manual 
labor.     The  numbers  three,  five,  and  seven — to  what  have  they  a  similarity? 


xii  SYNOPSIS   OF   SUBJECTS. 

A  year  must  not  be  intercalated  with  one  month,  except  by  them  who  are 
invited  for  it  by  the  Nashi.  Since  the  death  of  the  last  prophets — Haggai, 
Zechariah,  and  Malachi — the  Holy  Spirit  has  left  Israel,  etc.  A  leap  year 
should  not  be  made  because  of  the  kids,  lambs,  etc.  For  the  following  three 
things  a  leap  year  is  made :  Because  of  the  late  arrival  of  Spring,  etc.  A 
leap  year  must  not  be  made  in  the  years  of  famine.  The  year  must  not 
be  intercalary  before  Rosh  Hashana.  A  leap  year  must  not  be  made  in  one 
year  for  the  next.  No  appointment  of  a  leap  year  must  be  because  of  defile- 
ment. If  not  for  Ben  Baba,  the  law  of  fines  would  be  forgotten  from  Israel. 
The  leo-end  how  Jehudah  b.  Baba  supplied  the  degree  of  Rabbi  to  five  (six) 
elders,  and  by  this  act  he  caused  the  oral  law  not  to  be  forgotten  from  Israel. 
The  custom  of  giving  degrees  must  not  be  used  out  of  Palestine.  What 
is  to  be  considered  second  tithe,  of  which  the  value  is  not  known  ?  Rotten 
fruit,  etc.  "  Every  great  matter,''  means  the  matter  of  a  great  man.  By  the 
whole  tribe,  is  meant  the  head  of  it.  The  legend  how  a  battle  was  decided 
by  King  David.  Whence  do  we  know  that  it  is  a  duty  to  appoint  judges  to 
each  tribe  ?  etc.  The  legend  of  Eldad  and  Medad,  and  what  their  prophecy 
was.  How  Moses  selected  the  seventy  elders  from  each  tribe,  and  also  the 
payment  of  the  first-born  who  were  not  redeemed  by  Levites.  Sentence 
of  guilt  must  be  by  a  majority  of  two.  If  all  persons  of  a  Sanhedrin  are 
accusing,  the  defendant  becomes  free.  How  so  ?  In  a  city  in  which  the 
following  ten  things  do  not  exist  it  is  not  advisable  for  a  scholar  to  reside, 
and  they  are,  etc.  Of  rulers  of  thousands  were  six  hundred  ;  of  hundreds, 
six  thousand  ;  of  fifties,  twelve  thousand  ;  of  tens,  sixty  thousand — hence  the 
total  number  of  .the  officers  in  Israel  was  seventy-eight  thousand  and  six 
hundred, 1-42 

CHAPTER   II. 

MiSHNAS  /.  AND  //.  The  high-priest  may  judge  and  be  a  witness ;  be 
judged  and  witnessed  against.  A  king  must  not  judge,  and  is  not  judged  ; 
must  not  be  a  witness,  nor  witnessed  against.  There  are  cases  from  which 
one  may  withdraw  himself,  and  there  are  others  from  which  he  may  not. 
How  so  ?  A  king  must  not  be  a  member  of  the  Sanhedrin  ;  nor  he  and  a 
high-priest  engage  in  discussion  about  a  leap  year.  The  legends  of  three 
pasturers  who  had  a  discussion  about  the  month  Adar,  which  the  rabbis  took 
as  a  support  to  establish  a  leap  year.  When  he  (high-priest)  goes  in  the  row 
to  condole  with  others,  his  vice  and  the  ex-high-priest  are  placed  at  his  right, 
etc.  Formerly  the  custom  was  for  the  mourners  to  stand,  and  the  people  to 
pass  by,  etc.  A  row  is  not  less  than  ten  persons,  not  counting  the  mourners. 
All  agree  that  if  a  king  has  relinquished  his  honor,  it  is  not  relinquished. 
How  could  David  marry  two  sisters  while  they  were  both  living  ?  The 
strength  of  Joseph  was  moderation  on  the  part  of  Boas,  and  the  strength  of 
the  latter  was  moderation  on  the  part  of  Palti,  etc.,  etc.  If  a  death  occurs  in 
the  house  of  the  king,  he  must  not  leave  the  gate  of  the  palace,      .        43-52 

MiSHNAS  III.  TO  VI.  Three  positive  commandments  was  Israel  com- 
manded when  they  entered  Palestine,  viz.,  they  should  appoint  a  king,  etc. 
The  treasures  of  kings  which  are  plundered  in  time  of  war  belong  to  the  king 
only.     He  (the  king)  must  not  marry  more  than  eighteen  wives.     Even  one 


SYNOPSIS   OF   SUBJECTS.  xiii 

wife,  should  she  be  liable  to  turn  his  heart  away,  he  must  not  marry  her. 
The  number  eighteen  mentioned  in  the  Mishna— whence  is  it  deduced  ?  Four 
hundred  children  were  born  to  David  by  the  handsome  women  whom  he  took 
captive  {i.e.,  those  mentioned  in  Deut.  xxi.  ii).  Only  a  son  may  stay  alone 
with  his  mother;  but  it  is  not  allowed  for  any  one  besides  to  stay  alone  with 
a  married  woman.  He  (the  king)  must  not  acquire  many  horses,  neither 
more  gold  and  silver  than  to  pay  the  military.  He  shall  not  acquire  many 
horses,  and  lest  one  say,  "  Even  those  which  are  needed  for  his  chariots,"  etc. 
He  shall  not  acquire  much  gold  and  silver — lest  one  say,  "  Not  even  suffi- 
cient for  paying  the  military,"  etc.  Why  does  not  the  Scripture  explain  the 
reason  of  its  law  "i  Because  in  two  verses  it  was  so  done,  and  the  greatest 
men  of  a  generation  stumbled  because  of  them,  etc.  Ezra  was  wrothy  that 
the  Torah  should  be  given  through  him,  if  Moses  had  not  preceded  him.  In 
the  very  beginning  the  Torah  was  given  to  Israel  in  Assyrian  characters,  etc. 
(see  footnote,  p.  59).  One  must  not  ride  on  his— the  king's — horse,  etc. 
Come  and  see  how  hard  is  divorce  in  the  eyes  of  the  sages  !  He  who  divorces 
his  first  wife,  even  the  altar  sheds  tears  on  account  of  him.  The  king  must 
cut  his  hair  every  day,  a  high-priest  every  eve  of  Sabbath,  and  a  commoner 
priest  every  thirty  days 52-63 

CHAPTER   III. 

MiSHNAS  /.  TO  ///.  Civil  cases  by  three  :  one  party  may  select  one,  and 
so  the  other,  and  both  one  more.  Pure-minded  people  of  Jerusalem  used  not 
to  sign  a  document  unless  they  were  aware  who  was  the  other  who  was  to 
sign  it,  and  also  would  not  sit  down  to  judge  unless  they  were  aware  who 
was  to  be  their  colleague,  etc.  One  has  no  right  to  reject  a  judge  who  was 
appointed  by  the  majority.  There  is  a  rule  that  the  testimony  of  one  who  is 
interested  in  a  case  is  not  to  be  taken  into  consideration.  Proof  is  needed  to 
each  claim,  even  if  it  is  not  so  important  that  it  could  injure  the  case.  He 
who  saw  Resh  Lakish  in  the  college  saw  one  uprooting  hills  and  crushing 
them,  and  he  who  sawr  R.  Mair  saw  one  uprooting  mountains  and  crushing 
them.  Gamblers  (habitual  dice-players)  and  usurers,  and  those  who  play 
with  flying  doves,  are  disqualified  to  be  witnesses.  What  crime  is  there  in 
dice-playing  ?  Because  they  do  not  occupy  themselves  with  the  welfare  of 
the  world.  One  who  borrows  to  pay  usurers  is  also  disqualified.  Gamblers 
are  counted  those  who  play  with  dice  ;  and  not  only  with  dice,  but  even  with 
the  shells  of  nuts  or  pomegranates.  Among  those  who  play  with  doves — other 
animals  are  also  meant.  There  was  added  to  the  disqualified  witnesses 
robbers  and  forcers  {i.e.,  those  who  take  things  by  force,  although  they  pay 
the  value  for  them).  There  was  secondly  added  to  that  category,  collectors 
of  duty  and  contractors  of  the  government.  The  father  of  R.  Zera  was  a 
collector  for  thirteen  years,  etc.  One's  thought  for  his  maintenance  injures 
him  in  his  study  of  the  law,  etc.  They  who  accept  charity  from  idolaters 
are  disqualified  to  be  witnesses,  provided  they  do  so  publicly,  etc.  One  who 
is  wicked  in  money  matters  only  is  disqualified  to  witness,  but  not  one  wicked 
in  heavenly  matters.  Bar  Hama  had  slain  a  man,  and  the  Exilarch  told 
Aba  b.  Jacob  to  investigate  the  case  ;  and  if  he  really  slew  the  man  they 
should  make  the  murderers  blind,  etc., 64-79 


xiv  SYNOPSIS   OF   SUBJECTS. 

MiSHNAS  IV.  TO  VJ.  The  following  are  counted  relatives  who  may  not  be 
witnesses :  Brothers,  brothers  of  father  or  mother,  brothers-in-law,  etc, 
"  My  father's  brother  shall  not  witness  in  my  cases;  he,  his  son,  and  his  son-in- 
law."  "  The  brother  of  my  mother-in-law  cannot  be  a  witness  for  me."  The 
husband  of  one's  sister,  also  the  husband  of  the  sister  of  one's  father  and  the 
husband  of  the  sister  of  one's  mother,  their  sons  and  their  sons-in-law,  are 
also  excluded  from  being  witnesses.  A  stepfather  ...  his  son-in-law,  etc. 
There  was  a  deed  of  gift  which  was  signed  by  two  brothers-in-law — i.e.,  two 
husbands  of  two  sisters,  etc.  How  were  the  witnesses  examined  ?  They 
were  brought  into  separate  chambers,  etc.  How  were  the  witnesses 
frightened  ?  There  was  one  who  had  hidden  witnesses  under  the  curtains  of 
his  bed,  and  he  said  to  his  debtor  :  "  Have  I  a  mana  with  you  ?  "  etc.  There 
was  one  who  was  named  by  the  people  "  the  man  who  has  against  him  a 
whole  kab  of  promissory  notes."  There  was  another  who  was  named 
"the  mouse  who  lies  on  dinars,"  etc.  There  was  a  document  of  confession 
in  which  it  was  not  written  :  "  He  (the  debtor)  has  said  to  us,  '  Write  a 
document,  sign,  and  give  it  him '  (the  creditor),"  etc.  "  I  have  seen  your  de- 
ceased father  hide  money  in  a  certain  place,  saying,  '  This  belongs  to  so-and- 
so,'  "  etc.  How  is  the  judgment  to  be  written  ?  So  was  the  custom  of  the 
pure-minded  in  Jerusalem.  They  let  parties  enter,  listened  to  their  claims, 
and  thereafter  let  the  witnesses  enter,  listened  to  their  testimony,  then  told  all 
of  them  to  go  out,  etc.  This  is  a  rule  for  every  case  in  which  is  mentioned 
"  a  witness,"  that  it  means  two.  Simeon  b.  Alyaqim  was  anxious  that  the 
degree  of  Rabbi  should  be  granted  to  Jose  b.  Hanina,  etc.,  etc.  A  con- 
fession after  a  confession,  or  a  confession  after  a  loan,  may  be  conjoined  ; 
but  a  loan  after  a  loan,  or  a  loan  after  a  confession,  do  not  join  (p.  91). 
Witnesses  in  civil  cases  who  contradict  one  another  in  unimportant  investi- 
gations are  to  be  considered.  So  long  as  the  defendant  brings  evidence  to 
his  advantage,  the  decision  may  be  nullified  by  the  court.  However,  if  after 
he  had  said,  "I  have  no  witnesses,"  etc.  What  happened  to  R.  Na'hman 
with  a  young  man  whom  he  made  liable.  If  one  who  is  summoning  a  party 
who  says,  "I  want  my  case  brought  before  the  assembly  of  sages,"  etc.,  he 
may  be  compelled  to  try  his  case  in  that  city.  In  Babylon  they  are  not  allowed 
to  try  cases  of  fine 79-96 


CHAPTER   IV. 

MiSHNAS  /.  TO  ///.  Cases  coming  before  the  court,  the  witnesses  thereof 
must  be  examined  and  investigated.  What  difference  is  there  between  civil 
and  criminal  ?  The  following  from  (a)  to  (g).  Biblically  there  is  no  differ- 
ence between  civil  and  criminal  cases  concerning  investigations.  But  why 
is  it  enacted  that  civil  cases  do  not  need  investigation  }  "Justice,  only  jus- 
tice, shalt  thou  pursue,"  means  that  one  shall  follow  to  the  city  of  a  cele- 
brated judge,  etc.  What  has  the  court  first  to  say  to  the  advantage  of  the 
defense  in  criminal  cases  ?  If  one  has  tried  a  case,  and  made  liable  him 
who  is  not,  or  vice  versa,  etc.  Tudus  the  physician  testified  that  not  one 
cow  or  one  swine  was  sent  from  Alexandria  in  Egypt  of  which  the  womb 
was  not  removed.  If  one  was  found  guilty  by  the  court,  and  thereafter  one 
come,  saying  :  I  know  a  defense  for  him,  etc.     So  long  as  the  fire  in  the 


SYNOPSIS    OF    SUBJECTS.  xv 

stove  burns,  cut  off  all  that  you  want  to  roast,  and  roast  it,  {I.e.,  when  you 
are  studying  a  thing,  consider  it  thoroughly  to  prevent  questions.)  All  who 
take  part  in  the  discussion  may  explain  their  reasons,  until  one  of  the  accus- 
ers shall  yield  to  one  of  the  defenders.  In  the  neighborhood  of  R.  Johanan 
there  was  one  who  was  blind  who  used  to  judge  cases,  etc.  From  the  time 
of  Moses  until  the  time  of  Rabbi,  we  do  not  find  one  man  who  was  unique  in 
the  possession  of  wisdom,  riches,  and  glory,  etc.  One  may  teach  his  disciple, 
and  at  the  same  time  may  judge  in  association  with  him  in  criminal  cases. 
In  ten  things  civil  cases  differ  from  criminal  cases.  All  are  competent  to 
judge  civil  cases.  But  not  all  of  them  are  competent  to  judge  criminal  cases. 
The  Sanhedrin  sat  in  a  half-circle  in  order  that  they  could  see  each  other, 
etc.  The  Torah  has  testified  that  we  are  such  a  kind  of  people  that  even  a 
fence  of  lilies  is  sufficient  for  us,  and  will  never  be  broken.  How  were  the 
witnesses  awestruck  in  criminal  cases  ?  A  human  being  stamps  many  coins 
with  one  stamp,  and  all  of  them  are  alike  ;  but  the  Holy  One,  blessed  be  He, 
has  stamped  every  man  with  the  stamp  of  Adam  the  first,  and,  nevertheless, 
not  one  of  them  is  like  the  other.  Although  the  court  of  the  Sanhedrin  ex- 
isted no  longer,  the  punishment  of  the  four  kinds  of  death  prescribed  in  the 
Scripture  was  not  abolished  by  Heaven.  Adam  the  first  was  created  singly, 
and  why  ?  That  disbelievers  should  not  say  there  were  many  Creators  in 
heaven,  etc.  In  three  things  one  is  different  from  his  neighbor — in  voice, 
etc 97-114 

CHAPTER   V. 

MiSHNA  /,  The  court  used  to  examine  the  witnesses  with  seven  inquiries, 
etc.  Should  one  of  the  witnesses  say,  "I  have  something  to  say  in  behalf 
of  the  defendant,"  or  one  of  the  disciples,  "  I  have  something  to  say  to  the  dis- 
advantage of  the  defendant,"  the  court  silences  him.  Why  not  say  that 
eight  queries  are  necessary  in  the  examination  ?  Viz.,  how  many  minutes 
are  there  in  the  hour  ?  Do  you  recognize  this  man  as  the  murderer  of  him 
who  was  slain  ?  Was  he  a  heathen  or  an  Israelite  ?  Have  you  warned 
him  ?  Did  he  accept  the  warning  ?  etc.  Whence  do  we  deduce  that  the 
warning  is  prescribed  biblically  1  Witnesses  who  testified  in  case  of  a  be- 
trothed woman,  if  they  be  found  collusive,  are  not  to  be  put  to  death.  What 
is  the  difference  between  examination  ?  etc.  Until  what  time  may  the  bene- 
diction of  the  moon  be  pronounced  ?  If  Israel  should  have  only  the  merito- 
rious act  of  receiving  the  glory  of  their  heavenly  Father  once  a  month,  it 
would  be  sufficient.  They  do  not  drink  wine.  And  why  not  ?  In  civil 
cases  the  court  may  say  :  The  case  becomes  old,  etc,         .        .         11 5-125 


CHAPTER   VI, 

MlSHNAS  /,  TO  IV.  If  the  conclusion  was  to  condemn,  the  guilty  one  was 
taken  out  immediately  to  be  stoned,  A  herald  goes  before  him,  heralding  : 
So  and  so,  etc.  One  stands  with  a  flag.  I  doubt  who  had  to  bear  the  cost 
of  the  flag  and  horse  mentioned  in  the  Mishna,  etc.  If  one  of  the  disciples 
said,  "  I  have  something  to  say  in  behalf  of  the  defendant,"  and  thereafter  he 
became  dumb  ?     He  who  is  modest,  the  verse  considers  him  as  if  he  should 


xvi  SYNOPSIS   OF   SUBJECTS. 

sacrifice  all  the  sacrifices  mentioned  in  the  Scripture.  When  he  (the  guilty) 
was  far  from  the  place  of  execution — a  distance  of  ten  ells — he  was  told  to 
confess.  Why  are  the  words  "  unto  us  and  to  our  children,"  and  the  Ayin 
of  the  "ad  "  pointed  ?  The  Lord  said  to  Joshua  :  Thou  thyself  hast  caused 
all  the  evils,  because  thou  didst  excommunicate  the  goods  of  Jericho.  One 
should  always  proceed  with  prayer  before  trouble  comes.  It  happened  with 
one  who  was  going  to  be  executed,  that  he  said  :  If  I  am  guilty  of  this  crime, 
my  death  shall  not  atone  for  all  my  sins.  See  footnote,  p.  135,  concerning 
the  legend  of  Simeon  b.  S.  of  the  eighty  witches  hung  by  him.  A  male  was 
stoned  while  naked,  but  not  a  female.  The  stoning  place  was  two  heights 
of  a  man,  etc.  If  before  the  execution  the  hands  of  the  witnesses  were  cut 
off,  he  becomes  free  from  death.  "The  avenger  of  the  blood  himself  shall 
slay."     Infer  from  this  that  it  is  a  meritorious  act  for  the  avenger  to  do  so 

himself, 126-139 

MiSHNAS  K  AND  VI.  All  who  are  Stoned  are  also  hanged.  A  male,  but  not 
a  female.  Two  must  not  be  judged  on  the  same  day,  provided  there  are  two 
kinds  of  death.  How  was  one  hanged  ?  The  beam  was  put  in  the  earth, 
etc.  King  Sabur  questioned  R.  Hama :  Whence  do  you  deduce  from  the 
Torah  that  one  must  be  buried  ?  etc.  Is  the  burying  because  the  corpse 
shall  become  disgraced  if  not  buried,  or  is  it  because  of  atonement  ?  Is  the 
lamentation  an  honor  for  the  living  or  for  the  deceased  ?  And  what  is  the 
difference?  etc.  A  wicked  person  must  not  be  buried  with  an  upright  one. 
All  the  curses  with  which  David  cursed  Joab  fell  on  the  descendants  of 
David.  They  were  [II  Sam.  iii.  29J,  etc.  If  not  for  Joab,  David  would  not 
have  been  able  to  occupy  himself  with  the  law,  etc.,     .         .         .         139-148 


CHAPTER   VII. 

MiSHNAS  /.  TO  V.  Four  kinds  of  capital  punishment  are  prescribed  to  the 
court  by  the  Scriptures.  According  to  R.  Simeon,  burning  is  more  rigorous 
than  stoning.  With  her  father,  burning  applies  ;  with  her  father-in-law, 
stoning  applies.  How  is  this  to  be  understood  ?  Do  you  come  to  teach  a 
Halakha  which  will  be  used  only  then  when  the  Messiah  will  appear  ?  The 
prescribed  punishment  of  burning  was  this  :  The  sinner  was  placed  in  waste 
knee-deep.  Then  placing  a  twisted  scarf  of  coarse  material  within  a  soft 
one,  etc.  ^  But  why  should  burning  not  be  inferred  from  the  offerings  of  the 
bullocks,  which  were  burned  bodily  ?  Nadob  said  to  Abihu  :  When  will 
the  two  old  men  die,  and  you  and  I  be  leaders  of  Israel  ?  The  prescribed 
punishment  of  slaying  was  thus  :  He  was  decapitated,  etc.  The  prescribed 
punishment  of  choking  was  thus  :  The  sinner  was  placed  in  waste  knee-deep, 
etc.  To  the  following  sinners  stoning  applies  :  viz.,  one  who  had  connec- 
tion with  his  mother,  etc.  "  A  man  "  means  to  exclude  a  minor.  [Lev.  xxii.]  : 
"  That  lieth  with  his  father's  wife  "  means,  that  there  is  no  difference  whether 
she  is  his  mother  or  not, 150-164 

MiSHNAS  VI.  TO  V/I.  One  who  had  connection  with  a  human  male,  or 
with  an  animal,  and  also  a  human  female  who  uncovers  herself  before  a  male 
animal,  are  punished  with  stoning.  "With  an  animal  "  makes  no  difference 
whether  it  was  a  large  or  a  small  one.  A  blasphemer  is  not  guilty,  unless 
he  mentioned  the  proper  name  of  God  (Jehovah).     "  Any  man  whatsoever," 


SYNOPSIS    OF    SUBJECTS.  xvii 

etc.,  meaning  to  include  the  heathen,  who  are  warned  of  blasphemy.  Ten 
commandments  were  commanded  to  Israel  in  Marah  ;  seven  of  them  are 
those  which  were  accepted  by  the  descendants  of  Noah.  For  transgression 
of  these  commandments  a  descendant  of  Noah  is  put  to  death,  viz.,  adultery, 
bloodshed,  and  blasphemy.  A  descendant  of  Noah  may  be  put  to  death  by 
the  decision  of  one  judge,  by  the  testimony  of  one  witness,  etc.  Every  rela- 
tionship for  which  the  punishment  of  the  courts  of  Israel  is  death,  a  descend- 
ant of  Noah  is  warned  of  it;  but  all  other  relationships,  the  punishment  of 
which  is  not  death,  are  permissible  to  them.  He  who  raises  his  hand  to 
his  neighbor,  although  he  has  not  as  yet  struck  him,  is  called  wicked.  "  Flesh 
in  which  its  life  is,  which  is  its  blood,  shall  ye  not  eat,"  [Gen.  ix.  4]  means 
any  member  of  the  animal,  while  it  is  still  alive.  We  do  not  find  any  case 
where  what  is  forbidden  to  the  descendants  of  Noah  should  be  allowed  to  the 
Israelites.  An  unclean  thing  never  came  from  heaven.  There  is  no  differ- 
ence if  one  hears  it  from  the  blasphemer  himself  or  from  the  witness  who 
heard  it  from  the  blasphemer— he  must  rend  his  garments     .         .     164-187 

MiSHNAS  VIII.  TO  XII.  One  is  considered  an  idolater  who  worships  it 
with  its  proper  worship;  and  even  if  he  only  sacrifices,  smokes  incense,  or 
pours  wine,  etc.  Why  not  say  that  from  bowing  "  all  kinds  of  worshipping  " 
is  to  be  inferred  ?  In  our  Mishna  itsis  stated  :  "He  who  worships  idols." 
There  is  another  Mishna,  farther  on,  which  states  :  He  who  says:  "I  will 
worship,"  is  always  considered  an  idolater,  etc.  If  one  worship  an  idol 
because  he  loves  it,  or  because  he  fears  it,  etc.  Concerning  Sabbath  it  is 
more  rigorous  than  all  the  other  commandments  in  one  respect,  and  all  other 
commandments  are  more  rigorous  in  another  respect,  etc.  There  is  a  tradi- 
tion :  He  who  conjoins  the  name  of  Heaven  with  something  else  is  to  be 
destroyed.  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, 
etc.  If  one  gives  one  of  his  children  to  Molech,  he  is  not  guilty  unless  he 
has  transferred  him  to  the  servants,  etc.  One  is  not  guilty  unless  he  let  him 
pass  in  the  usual  manner.  What  was  that  ?  A  row  of  bricks  were  placed  for 
passing,  etc.  Baal  ob  (mentioned  in  the  Scripture)  is  the  python  that  makes 
the  dead  speak  from  his  armpit,  and  Yidofii  means  one  that  makes  the  dead 
speak  from  his  mouth.  Is  not  he  who  queries  an  "  ob  "  the  same  who  inquires 
of  the  dead  ?  Nay  !  etc.  An  observer  of  times  is,  according  to  R.  Aqiba, 
he  who  reckons  times  and  hours,  saying:  This  day  is  good  to  go  on  the  road, 
etc.  He  who  curses  his  father  or  mother  is  not  punished  with  a  capital 
punishment,  unless  he  curse  them  by  the  proper  name  of  God,         .    187-194 

MiSHNAS  XIII.  TO  XIV.  He  who  sins  with  a  betrothed  damsel  is  not 
guilty  to  be  stoned,  unless  she  was  a  maiden  betrothed  and  still  in  her 
father's  house.  A  seducer  means  one  who  is  himself  a  commoner — e.g.,  he 
says  :  There  is  an  idol  in  such  and  such  a  place  which  so  and  so  eats,  etc. 
Concerning  all  who  are  liable  to  capital  punishment  biblically,  it  is  not 
allowed  to  hide  witnesses  except  in  this  case,  etc.  A  conjurer  is  liable  to  be 
stoned  only  when  he  did  an  act,  but  not  if  he  dazzled  the  eyes.  The  Halakhas 
ofwitchcraft  are  similar  to  the  Halakhas  of  Sabbath.  There  are  some  to 
which  stoning  applies,  etc.  I  have  seen  a  rider  of  a  camel  who  took  his 
sword,  cut  off  the  head  of  the  camel,  and  thereafter  rung  a  bell,  and  the  camel 
stood  up.    It  was  only  a  dazzling  of  the  eyes.    The  legend  of  R.  Eliezer  with 


xviii  SYNOPSIS   OF   SUBJECTS. 

his  disciple,  "Thou  shalt  not  learn  to  do,"  means:  "Thou  must  not  learn 
to  do,  but  thou  mayest  learn  it  to  understand  it  for  the  purposes  of  deciding 
cases,        194-200 

CHAPTER  VIII. 

MiSHNAS  /.  TO  VIII.  A  stubborn  and  rebellious  son — at  what  age  may  he 
be  considered  as  such?  From  the  time  he  brings  forth  two  hairs,  etc.;  but 
the  sages  used  to  speak  with  delicacy.  A  minor  of  nine  years  and  one  day  is 
fit  to  have  connection  with  a  woman,  and  in  a  case  of  adultery  it  is  considered. 
Whence  do  we  know  that  the  first  generation  produced  children  at  the  age  of 
eight?  A  daughter  should  be  more  open  to  the  charges  of  stubbornness  and 
rebelliousness,  etc.  But  so  is  the  decree  of  the  Scripture — "  a  son,  and  not  a 
daughter."  He  cannot  be  condemned  as  a  stubborn  and  rebellious  son 
unless  he  eats  meat  and  drinks  wine.  You  shall  not  look  for  wine  which 
makes  red  the  faces  of  the  wicked  in  this  world,  and  makes  them  pale  in  the 
world  to  come.  Thirteen  ways  are  enumerated  in  the  Scripture  concerning 
wine,  as  in  Genesis  ix.,  from  20  to  25.  If  he  has  stolen  from  his  father  and 
consumed  on  his  premises,  etc.,  he  is  not  charged  as  a  stubborn  and  rebel- 
lious son  unless  he  stole  from  his  mother  and  father.  If  the  father  is  willing 
to  transfer  the  case  of  the  son  in  question  to  the  court,  and  the  mother  is  not 
willing,  or  vice  versa,  etc.  Such  a  thing  neither  occurred  nor  ever  will  be, 
and  the  same  is  with  the  case  of  a  misled  town,  and  also  with  a  house  of  lep- 
rosy, and  was  written  only  for  study.  If  one  hand  of  his  father  or  mother  is 
missing,  or  they  limp,  or  are  dumb,  etc.  If  he  runs  away  before  the  decision 
of  condemnation  is  rendered,  etc.  The  Scripture  prefers  that  he  should  die 
innocent,  and  not  be  put  to  death  because  of  his  sins.  For  the  death  of  the 
wicked  is  both  a  benefit  to  them  and  a  benefit  to  the  world,  etc.  In  the  case 
of  "breaking  in"  [Ex.  xii.,  i],  for  which  there  is  no  liability  if  one  is  killed 
by  a  detector,  one  is  also  punished  because  of  his  future  crimes,  etc.  A 
burglar  who  broke  in  and  succeeded  in  taking  some  utensils  and  escaped  is 
free  from  paying.  Because  he  acquired  title  to  them  by  his  blood.  It 
happened  that  rams  were  stolen  from  Rabha  by  burglary  and  thereafter  they 
were  returned  to  him;  he  would  not  accept  them  because  the  above  decision 
came  from  the  mouth  of  Rabh,  etc., 201-216 

MiSHNA  IX.  The  following  may  be  killed  for  self-protection  :  He  who 
pursues  one  to  kill  him,  and  he  who  pursueth  a  betrothed  damsel,  etc. 
According  to  the  rabbis  the  Scripture  cares  for  the  violation  of  her  honor, 
and  as  she  also  cares  for  it,  though  without  life-sacrifice,  she  must  be  saved 
even  by  killing  her  pursuers,  etc.  One  who  intends  to  worship  idols  may  be 
killed  (if  there  is  an  impossibility  of  preventing  his  crime  otherwise.)  "  In 
the  city  of  Luda  it  was  voted  and  resolved  that  if  one  were  compelled,  under 
threat  of  being  killed,  to  commit  any  one  of  all  the  crimes  which  are  men- 
tioned in  the  Torah,  he  might  commit  it  and  not  be  killed,  except  idolatry, 
adultery,  and  bloodshed.  Is  a  descendant  of  Noah  commanded  to  sanctify 
the  Holy  Name,  or  not?  It  happened  to  one  that  he  saw  a  woman  and 
became  sick  through  his  infatuation,  etc., 216-221 

CHAPTER  IX. 

MiSHNAS  /.  TO  VI.  Punishment  of  burning  applies  to  one  man  who  has 
intercourse  with  a  woman  and  her  daughter,  and  to  a  daughter  of  a  priest. 


SYNOPSIS    OF    SUBJECTS.  xix 

etc.  Punishment  with  the  sword  applies  to  a  murderer  and  to  the  men  of  a 
misled  town.  If  one  pressed  down  a  person  while  he  is  in  water,  or  in  fire, 
preventing  him  from  coming  out,  he  is  guilty,  etc.  If  one  bound  a  person, 
and  he  died  thereafter  of  hunger,  he  is  not  guilty  of  a  capital  crime.  If,  how- 
ever, he  put  him  in  a  sunny  place,  and  he  died  because  of  the  sun,  he  is  guilty. 
Ball-players — if  one  threw  a  ball  with  the  intention  of  killing  some  one,  he  is 
to  be  put  to  death,  and  if  it  was  unintentional,  he  is  to  be  exiled,  etc.  All 
agree  that  if  one  kills  a  person  whose  windpipe  and  larynx  (gullet)  are  cut 
or  whose  skull  is  fractured,  he  is  free  (for  it  is  considered  as  if  he  attacked  a 
dead  man).  If  one  strikes  a  person  with  a  stone  or  with  his  fists,  and  he  was 
diagnosed  (by  the  physicians  of  the  court)  to  die,  and  thereafter  he  improved, 
etc.  Capital  punishment  does  not  apply  to  one  who  intended  to  kill  an 
animal  and  killed  a  man,  an  idolater  and  killed  an  Israelite,  etc.;  but  it  does 
apply  to  one  who  intended  to  strike  a  person  on  the  loins  with  an  article 
which  was  sufificient  for  this  purpose,  and  he  strikes  him  to  death  on  his 
heart,  etc.  A  murderer  mixed  up  among  others — all  of  them  are  free,  etc. 
If  it  happen  that  the  persons  sentenced  to  deaths  of  different  kinds,  and  are 
so  mixed  that  it  is  not  known  who  comes  under  this  kind  of  death  and  who 
under  another,  all  of  them  must  be  executed  with  the  more  lenient  death. 
If  one  committed  a  crime  which  deserves  two  kinds  of  death,  he  must  be 
tried  for  the  more  rigorous  one.  Ezek.  xviii.  must  not  be  taken  literally,  but 
"  the  mountains  he  eateth  not "  means  that  he  does  not  live  upon  the 
reward  of  the  meritorious  acts  done  by  his  parents;  "his  eyes  he  lifteth  not 
up  to  the  idols  "  means  that  he  never  walked  overbearingly,  etc.,  .  222-238 
MiSHNAS  VII.  TO  IX.  He  who  receives  stripes,  and  relaxes  into  the  same 
crime,  the  court  takes  him  to  the  kyphos.  He  who  kills  a  person  not  in  the 
presence  of  witnesses  is  taken  to  the  kyphos  and  is  fed  on  scant  bread  and 
water.  If  one  steals  a  kisvah.  or  one  curses  his  neighbor,  invoking  God  as  a 
"  carver,"  zealous  people  (like  Pinchas)  have  a  right  to  strike  him  when 
caught  in  the  act.  What  is  this  punishment  if  there  were  no  zealous  men  ? 
Answer  to  this,  it  happened  that  it  was  read  before  R.  Kahan  in  a  dream, 
etc.  In  a  case  where  there  is  a  violation  of  the  Holy  Name  the  honor  of  the 
master  must  not  be  considered.  "  If  a  priest  performs  the  service  while  he 
is  defiled,"  etc.     "  If  a  common  Israelite  served  in  the  Temple,"  etc.,  238-244 


CHAPTER  X. 

MiSHNAS  /.  TO  VI.  Choking  applies  to  him  who  strikes  his  father  or 
mother,  to  him  who  steals  a  living  soul,  etc.  A  son  is  not  guilty  of  a 
capital  crime  unless  he  wounds  his  father  by  striking  him.  Cursing  is  in  one 
respect  more  rigorous  than  striking,  as  he  is  guilty  even  if  he  did  it  after  his 
father's  death.  If  one  steals  a  person,  he  is  not  guilty  of  a  capital  crime 
unless  he  brings  him  upon  his  own  premises.  There  is  no  difference 
■whether  he  stole  a  male  or  a  female,  a  proselyte,  or  a  bondsman,  or  a  minor, 
etc.  R.  Jehudah  says  that  there  is  no  disgrace  for  slaves.  "  Thou  shalt  not 
steal,"  in  the  third  commandment,  means  human  beings.  [Lev.  xix.,  11]  : 
"  Ye  shalt  not  steal,"  meaning  money.  A  judge  rebelling  against  the  Great 
Sanhedrin.  There  were  in  Jerusalem  three  courts,  etc.  In  case  a  judge  in 
the  country  had  a  dispute  with  his  colleagues,  they  came  to  the  first  court. 
If  this  court  were  able  to  decide  it  traditionally  they  rendered  their  decision; 
and  if  not,  all  of  them  came  to  the  Great  Sanhedrin,  which  was  in  the  Temple 


XX  SYNOPSIS    OF    SUBJECTS. 

treasury,  etc.  A  disciple  who  is  not  a  judge  who  decides  for  practice  against 
the  Great  Sanhedrin,  is  not  culpable.  A  rebelling  judge  is  not  guilty  unless 
he  gave  his  decision  in  a  matter  to  which,  if  done  intentionally,  korath 
applies,  etc.  The  punishment  of  him  who  transgresses  the  decision  of  the 
scribes  is  more  rigorous  than  for  that  which  is  plainly  written  in  the 
Scriptures.  The  judge  in  question  was  not  put  to  death  by  the  court  of  his 
own  city,  etc.,  but  was  brought  to  the  Supreme  Council,  in  Jerusalem,  etc. 
A  false  prophet  who  is  to  be  sentenced  by  the  court  is  only  he  who  prophe- 
sies what  he  (personally)  has  not  heard  and  what  he  was  not  told  at  all,  etc. 
He  who  prophesied  in  the  name  of  an  idol,  saying,  "  So  and  so  was  said  by 
such  an  idol,"  although  it  corresponds  exactly  with  the  Hebrew  law, 
he  is  punished  by  choking.  See  all  illustrations,  pp.  258-260.  In  every  case 
mentioned  in  the  Torah,  if  a  true  prophet  commands  you  to  transgress,  you 
may  listen,  except  as  to  idolatry, 245-261 


CHAPTER  XI. 

MiSHNA  /.  All  Israel  has  a  share  in  the  world  to  come.  The  following 
have  no  share  in  the  world  to  come:  He  who  says,  etc.  Three  kings  and 
four  commoners  have  no  share  in  the  world  to  come,  etc.  Is  he  who  does 
not  believe  that  the  resurrection  is  hinted  at  in  the  Torah  such  a  criminal 
that  he  loses  his  share  in  the  world  to  come?  Where  is  the  resurrection 
hinted  at  in  the  Torah?  etc.  From  the  Pentateuch,  Prophets,  and  Hagi- 
ographa.  See  267,  also  footnote.  Queen  Cleopatra  questioned  R.  Mair  thus: 
When  they  shall  be  restored,  will  they  be  naked  or  dressed?  Caesar  ques- 
tioned Rabbon  Gamaliel:  You  say  that  the  dead  will  be  restored.  Does  not 
the  corpse  become  dust?  etc.  The  living  die — should  the  dead  come  to  life? 
That  which  has  not  existed  at  all  comes  to  life — shall  those  who  had  life  once 
not  come  to  life  again?  The  legend  of  Gebiah  b.  Pessisa  who  advocated 
Israel  before  Alexander  of  Macedonia,  etc.  (Pp.  268,  270.)  Antoninus  said 
to  Rabbi:  The  body  and  soul  of  a  human  may  free  themselves  on  the  Day 
of  Judgment  by  Heaven.  How  so?  Why  does  the  sun  rise  in  the  east  and 
set  in  the  west?  At  what  time  does  the  soul  come  into  the  body?  At  what 
time  does  the  evil  spirit  reach  man?  Lest  one  say  that  the  verse  just  cited 
means,  I  make  one  die  and  another  one  shall  I  bring  to  life,  therefore  it 
reads,  "  I  wound  and  I  cure."  As  wounding  and  curing  apply  to  one  person 
only,  etCv  He  who  hesitates  in  declaring  a  Halakha  to  a  disciple,  even  the 
embryos  in  the  entrails  of  their  mothers  denounce  him.  Great  is  wisdom, 
as  it  was  placed  between  two  divine  names.  Exiles  atone  for  everything. 
The  upright  who  will  be  restored  in  the  future  will  never  return  to  dust. 
"  What  will  they  do  at  the  time  the  Holy  One,  blessed  be  He,  shall  renew 
His  world  ? "  etc.  Concerning  the  dead  whom  Ezekiel  restored,  the 
different  opinions  of  Tannaim  and  Amoriam,  if  it  was  a  reality  or  a  parable 
only.  (P.  278.)  Six  miracles  occurred  on  the  day  Nebuchadnezzar  threw 
Chananyah,  Mishael,  and  Azaryah  into  the  caldron.  Even  at  the  time  of 
danger  one  shall  not  change  the  dress  belonging  to  his  dignity.  Where  was 
Daniel  at  the  time  that  they  were  thrown  into  the  caldron?  The  legend  of 
Achab  and  Zedkiyahu  with  the  daughter  of  Nebuchadnezzar.  According  to 
the  advice  of  three,  Daniel  went  away  before  the  affair  of  Chananyah,  etc. 
Concerning  the  six  barleys  which  Boaz  gave  to  Ruth.  All  that  is  written 
in  the  book  of  Ezra  was  said  by  Nehemiah  b.  Chackhalyah.     Why  then  was 


SYNOPSIS    OF    SUBJECTS.  xxi 

it  not  named  after  him?  The  angel  who  rules  the  souls  after  their  departure 
from  this  world  is  named  Dumah.  Hiskiah,  who  has  eight  names,  shall 
take  revenge  on  Sanherib,  who  also  has  eight  names.  Hiskiah's  (king  of 
Judah)  whole  meal  consisted  of  a  litter  of  herbs.  Pharaoh,  who  personally 
blasphemed,  was  also  punished  by  Heaven.  Sanherib,  who  blasphemed 
through  a  messenger,  was  also  punished  through  a  messenger.  Ten  trips 
had  the  wicked  made  on  that  day,  etc.,  as  it  reads  [II  Kings,  x.  28  to  32]. 
There  was  one  day  more  appointed  for  the  punishment  of  the  iniquity  of 
Nob.  And  the  astrologers  told  Sanherib,  etc.  If  the  judgment  is  postponed 
over  one  night  there  is  hope  that  it  will  be  abolished  entirely.  The  legend 
how  Abishai  saved  King  David  from  Yishbi's  hand  at  Nob.  Sanherib,  when 
he  came  to  attack,  brought  with  him  forty-five  thousand  princes  with  their 
concubines  in  golden  carriages,  etc.  See  pages  293-296,  the  many  legends 
concerning  Sanherib.  Be  careful  with  the  children  of  the  Gentiles,  as  it 
happens  very  often  wisdom  emanates  from  them.  That  the  day  on  which 
Achaz  died  consisted  of  only  two  hours.  And  when  Heskiah  became  sick 
and  thereafter  recovered,  the  Holy  One  returned  the  ten  hours  to  that  day, 
etc.  Three  hundred  mules  loaded  with  iron  saws  which  cut  iron  were  given 
to  Nebusaradan  by  Nebuchadnezzar  while  going  to  attack  Jerusalem. 
Nebusaradan  was  a  true  proselyte,  from  the  descendants  of  Sissera  were 
such  who  studied  the  law  in  Jerusalem,  and  from  the  descendants  of  Sanherib 
were  such  who  taught  the  Torah  among  a  majority  of  Israelites,  etc.  Have 
you  heard  when  the  fallen  son  will  come?  etc.  In  his  Sabbatic  period 
when  the  son  of  David  will  appear  in  the  first  year  there  will  be  fulfilled,  etc. 
The  generation  in  which  the  son  of  David  will  come,  young  men  will  make 
pale  the  faces  of  the  old,  etc.  The  world  will  continue  for  six  thousand  years, 
the  first  two  thousand  of  which  was  a  chaos,  etc.  There  are  no  less  than 
thirty-six  upright  in  every  generation  who  receive  the  appearance  of  the 
Shekinah.  All  the  appointed  times  for  the  appearance  of  the  Messiah  have 
already  ceased.  And  it  depends  only  on  repentance  and  good  deeds.  Jeru- 
salem will  not  be  redeemed  but  by  charity.  What  the  Messiah  told  to 
Jehoshua  ben  Levi  :  Ben  David  will  not  arrive  until  Rome  shall  have 
dominated,  etc.  Discussion  concerning  the  name  of  the  Messiah.  The 
cock  said  to  the  bat,  I  look  out  for  the  light  because  the  light  is  mine  (I  see 
it),  but  for  what  purpose  do  you  wait  for  it?  The  days  of  the  Messiah  will 
be  as  from  the  day  of  creation  until  now.  "  He  hath  despised  the  word  of 
God,"  means  he  who  learned  the  Torah  but  does  not  teach  it.  He  who 
learned  the  Torah  and  does  not  repeat  it  is  similar  to  him  who  sows  but  does 
not  harvest,  etc.  Has  not  •  Moses  written  something  better  than  :  And 
Lotan's  sister  was  Thimna,  etc.  ?  Who  is  meant  by  the  term  epicurian  ? 
What  good  have  the  rabbis  done  for  us?  They  have  never  permitted  us  to 
eat  a  crow,  and  they  have  not  prohibited  us  to  eat  a  dove,  etc.  The  measure 
with  which  man  measures  will  be  measured  out  to  him— i.e.,  as  a  man  deals 
he  will  be  dealt  with.  A  good  woman  is  a  good  gift;  she  may  be  given  to  one 
who  fears  God.  A  bad  woman  is  leprosy  to  her  husband,  etc.  One  may 
ask  the  fortune  tellers  who  tell  fortunes  by  certain  oils  or  eggs.  But  it  is  not 
advisable  to  do  so,  because  they  often  lie.  Support  me,  and  I  will  bear  the 
statement  of  Aqiba,  my  disciple,  who  says  :  "  Pleased  are  chastisements," 
etc.  Three  men  (biblical  personages)  came  with  indirectness,  etc.  What 
means,  "and  he  lifted  up  his  hands"?  He  took  ofif  his  phylacteries  in 
his  presence.     (See  footnote,  page  323.)     The  legends  concerning  Jeroboam, 


xxii  SYNOPSIS   OF   SUBJECTS. 

pp.  322-325.  King  Menashe  appears  to  R.  Ashi  in  a  dream.  R.  Abuhu 
used  to  lecture  about  the  three  kings  and  became  sick,  etc.  Why  was  Achab 
rewarded  by  the  prolongation  of  his  kingdom  for  twenty-two  years? 
Because  he  was  liberal  with  his  money  and  assisted  many  scholars  from  his 
estate;  half  his  sins  were  atoned.  Four  sects  will  not  receive  the  glory  of  the 
Shekhina,  viz.,  scorners,  liars,  hypocrites,  and  slanderers.  Achaz  abolished 
the  worship  and  sealed  the  Torah,  etc.  The  angels  wanted  to  put  Michah 
aside,  but  the  Lord,  however,  said  leave  him  alone  because  his  house  is  open 
for  travellers.  Great  are  entertainments,  for  its  refusal  estranged  two  tribes 
from  Israel,  etc.  Why  does  not  the  Mishna  count  Achaz  and  Amon  among 
those  who  have  no  share  ?  etc.  Explanation  to  verses  of  Lamentation, 
PP-  334  to  327.  The  Scripture  is  particular  that  if  any  one  tells  his  troubles  to 
his  neighbor,  he  should  add  :  "  May  it  not  happen  to  you."  The  interpreters 
of  notes  said  that  all  of  them  have  a  share  in  the  world  to  come,  etc.  "  A 
perpetual  backsliding."  Said  Rabh:  A  victorious  answer  has  the  assembly 
of  Israel  given  to  the  prophets,  etc.  Concerning  Bil'am,  the  elders  of 
Moab.  and  Midian, 265-340 

One  shall  always  occupy  himself  with  the  Torah  and  divine  command- 
ments, even  not  for  the  sake  of  Heaven,  as  finally  He  will  come  to  do  so 
for  His  own  sake,  etc.  The  caution  that  Achiyah,  the  Shilonite,  gave  to 
Israel  is  better  for  them  than  the  blessings  that  Bil'am  has  given  to  them. 
"  And  Israel  dwelt  in  Shittim."  Everywhere  such  an  expression  is  to  be 
found  it  brings  infliction,  etc.  I  saw  the  record  of  Bil'am,  and  it  was  writ- 
ten therein  thirty-three  years  was  Bil'am  when  he  was  killed  by  Pinchas, 
the  murderer.  One  shall  not  bring  himself  into  temptation,  as  David,  king 
of  Israel,  placed  himself  in  the  power  of  a  trial  and  stumbled.  Six  months 
was  David  afflicted  with  leprosy;  the  Shekhina  left  him,  and  the  Sanhedrin 
separated  themselves  from  him.  Exclusion  shall  always  be  with  the  left 
hand,  and  inclusion  with  the  right  hand — i.  e.,  if  one  is  compelled  to  repudiate 
some  one,  he  shall  do  it  easy  as  with  his  left  hand,  etc.  Concerning  David's 
sin  with  Bath  Sheba, 340-350 

Mishna  //.  The  generation  of  the  flood  have  no  share  in  the  world  to 
come,  and  are  also  not  judged,  etc.  Concerning  the  generation  of  disper- 
sion, men  of  Sodom  and  Gomorrah,  etc.,  pp.  350-355:  "  Noah  was  just,  a  per- 
fect man  in  his  generation;"  in  his  generation,  but  not  in  others.  According 
to  Resh  Lakish:  In  his  generation  which  was  wicked,  so  much  the  more  in 
other  generations.  Eliezar,  the  servant  of  Abraham,  questioned  Shem  the 
great,  etc.  Shem  the  great  questioned  Eliezar,  etc.  "  The  generation  of 
dispersion."  What  had  they  done  ?  What  were  the  crimes  of  the  Sodom- 
ites ?  Concerning  the  congregation  of  Korah.  One  must  do  all  he  can 
not  to  strengthen  a  quarrel,  etc.  "  And  all  .  .  .  on  their  feet,"  means 
the  money  which  makes  one  stand  on  his  feet.  "  The  generation  of  the 
desert  has  no  share,"  etc,     Eliezar,  however,  said,  they  have,  etc.,     .     350-362 

MisHNAS  ///.  TO  IV.  The  ten  tribes  who  were  exiled  will  not  be  returned, 
etc.  (pp.  362-363).  From  what  age  has  a  minor  a  share  in  the  world  to  come? 
Your  saying  is  not  satisfactory  to  their  creator.  Say  the  reverse,  even  he 
who  has  studied  but  one  law  does  not  belong  to  the  Gehenna.  It  hap- 
pened once  that  I  was  in  Alexandria  of  Egypt,  and  I  found  a  certain  old 
Gentile  who  said  to  me:  Come,  and  I  will  show  you  what  my  great-grand- 
fathers have  done  to  yours,  etc.  Concerning  Shebna  and  his  society,  ref. 
Isaiah.    viii-i2.     Adam    was    created    on   the    eve    of    Sabbath.     And    why? 


SYNOPSIS    OF    SUBJECTS.  xxiii 

The  Minnim  shall  not  say,  etc.  At  the  time  the  Lord  was  about  to  create 
a  man,  He  created  a  cceius  of  angels,  etc.  Every  place  where  the  Minnim 
gave  their  wrong  interpretation  the  answer  of  annulling  it  is  to  be  found 
in  the  same  place— e.g.,  p.  370.  The  discussion  with  R.  Gamaliel  and  other 
rabbis,  pp.  372-376.  "  My  creatures  are  sinking  into  the  sea,  and  ye  want 
to  sing?"  It  reads  [Ob.  i.  i]  :  "The  vision  of  the  Lord  .  .  .  con- 
cerning Edom."  Obadiah  was  an  Edomite-proselyte.  And  this  is  what  people 
say  that  the  handle  of  the  hatchet  to  cut  the  forest  is  taken  from  the  wood 
of  the  same  forest.  [Gen.  xxii.  i]  :  "After  these  things."  After  what? 
After  the  words  of  the  Satan,  etc.     According  to  Levi,  "  after  the  exchange 

of  the  words  between  Ishmael  and  Isaac,  etc., 362-378 

MiSHNA  IV.  The  men  of  a  misled  town  have  no  share  in  the  world  to 
come  (the  Halakhas  in  detail,  378-383).  Concerning  the  key  of  rain,  which 
is  one  of  the  three  keys  which  are  not  to  be  transferred  to  a  messenger, 
Elijah,  too,  in  the  days  of  Achab,  etc., 378-385 


TRACT  SANHEDRIN   (SUPREME 
COUNCIL). 


CHAPTER   I. 

RULES  AND  REGULATIONS  CONCERNING  THE  APPOINTMENT  OF  JUDGES 
IN  CIVIL  AND  CRIMINAL  CASES.  WHICH  ARE  CONSIDERED  CIVIL 
AND      WHICH      CRIMINAL.  HOW      MANY      ARE     NEEDED      TO      THE 

INTERCALATION  OF  A  YEAR  AND  OF  MONTHS  ;  TO  APPRAISE 
CONSECRATED  REAL  ESTATE  AS  WELL  AS  MOVABLE  PROPERTIES; 
AND  IF  AMONG  THE  APPRAISERS  MUST  BE  PRIESTS,  AND  IF  SO 
HOW  MANY.  THE  NUMBER  OF  PERSONS  NEEDED  TO  ADD  TO 
THE  CITY  FROM  THE  SUBURBS  OF  JERUSALEM.  WHAT  MAJORITY 
IS  NEEDED  TO  ACCUSE  AND  WHAT  TO  ACQUIT.  HOW  MANY 
PEOPLE  MUST  BE  IN  A  CITY  THAT  A  COURT  OF  TWENTY-THREE 
JUDGES   SHOULD    BE    ESTABLISHED. 

MISHNA  /.  :  To  decide  upon  the  following  cases,  three  per- 
sons are  needed  (the  Gemara  explains  for  which  common  and 
for  which  judges):  Civil  cases,  robbery,  wounds,  whole  damages 
and  half,  double  amount  and  four  and  five  fold  payments  ;''^  and 
the  same  in  the  case  of  forcing,  seducing,  and  libel  {i.e.,  an  evil 
name,  Deut.  xxii.  19).     So  is  the  decree  of  R.  Meir. 

Thi  sages,  however,  maintain  :  In  the  last  case  (libel)  twenty- 
three  a  e  needed,  as  this  is  not  a  civil  case,  but  a  crime  which 
may  bri  \g  capital  punishment.  In  the  case  of  stripes,  three.  In 
the  name  of  R.  Ishmael,  however,  it  was  said:  Twenty-three  are 
needed.  To  the  intercalation  of  a  month  and  to  proclaim  a  leap 
year,  three.     So  is  the  decree  of  R.  Meir, 

Rabban  Simeon  b.  Gamaliel  maintains:  It  begins  with  three 
persons  and  is  discussed  by  five,  and  the  decision  is  rendered  by 
seven  If,  however,  it  was  decided  by  three,  their  decision 
holds  good. 

The  elders  who  had  to  lay  their  hands  upon  sacrifices  [Lev. 

*  All  this  is  explained  in  Tract  Baba  Kama. 


2  THE    BABYLONIAN    TALMUD. 

iv.  15],  and  also  in  the  case  of  the  heifer  [Deut.  xxi.  3] — accord- 
ing to  R.  Simeon,  three  are  needed,  and  according  to  R.  Jehu- 
dah,  five.  At  the  performance  of  the  ceremony  of  Hahtzah  and 
denial,  three;  to  appraise  the  value  of  the  plants  of  the  fourth 
year  (which  must  be  redeemed),  and  the  second  tithe,  of  which 
the  value  in  money  is  to  be  appraised,  three;  to  appraise  the 
value  of  consecrated  articles,  three;  in  cases  of  Arakhin  (vows 
of  value,  men  or  articles),  if  movable  property,  three — accord- 
ing to  R.  Jehudah,  one  of  them  must  be  a  priest ;  and  if  real 
estate,  ten,  and  one  of  them  a  priest;  and  likewise  to  appraise 
the  estimated  value  of  men  [Lev.  xxvii.]. 

Crimes  (which  may  bring  capital  punishment),  twenty-three; 
in  the  case  of  Lev.  xx.  15,  twenty-three,  as  verse  16  reads: 
"  Then  shalt  thou  kill  the  woman  and  the  beast  " ;  and  also  in 
the  preceding  verse:  "  The  beast  also  shall  ye  slay."  And  the 
same  is  the  case  with  the  stoning  of  an  ox,  of  which  it  reads 
[Ex.  xxi.  29]  :  "  The  ox  shall  be  stoned,  and  the  owner  .  ,  . 
be  put  to  death  " — which  means,  as  for  the  death  of  its  owner 
twenty-three  are  needed,  so  also  for  the  stoning  of  the  ox. 

The  wolf,  the  lion,  the  bear,  the  tiger,  the  bardls,*  and  the 
serpent  are  killed  by  the  judgment  of  twenty-three.  R.  Eliezer, 
however,  maintains :  Every  one  who  hastens  to  kill  them  is 
rewarded.     But  R.  Aqiba  says:  Twenty-three  are  needed. 

A  whole  tribe,  or  a  false  prophet,  or  a  high-priest,  if  they 
have  to  be  judged  for  a  crime  which  may  bring  capital  punish- 
ment, a  court  of  seventy-one  judges  is  needed.  The  same  num- 
ber of  judges  is  needed  to  decide  upon  battles  which  are  not 
commanded  by  the  Scriptures,  and  also  for  enlarging  the  city 
of  Jerusalem  by  annexing  its  suburbs  or  free  land;  and  the  same 
is  the  case  if  it  is  necessary  to  enlarge  the  courtyard  of  the  Tem- 
ple. 'Also,  the  same  number  of  judges  is  needed  for  appointing 
supreme  councils  to  each  tribe.  A  misled  town  [Deut.  xii.  14] 
must  also  be  condemned  by  seventy-one.  However,  a  town 
which  stands  on  the  boundary  cannot  be  condemned;  nor  three 
of  them  at  one  time  at  any  place,  but  only  one,  or  two. 

The  Great  (Sanhedrin)  consisted  of  seventy-one,  and  the  small 
of  twenty-three.  Whence  do  we  deduce  that  the  great  council 
must  be  of  seventy-one  ?  From  [Num.  xi.  16]  :  "  Gather  unto  me 
seventy  men."  And  add  Moses,  who  was  the  head  of  them — 
hence  seventy-one  ?  And  whence  do  we  deduce  that  a  small  one 
must  be  twenty-three?     From  [ibid.  xxxv.  24  and  25]:  "The 

*  According  to  some,  the  hyena  ;  to  others,  another  sort  of  a  preying  beast. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  3 

congregation  shall  judge  "  ;  "  And  the  congregation  shall  save."* 
We  see  that  one  congregation  judges,  and  the  other  congrega- 
tion saves — hence  there  are  twenty ;  as  a  congregation  consists 
of  no  less  than  ten  persons,  and  this  is  deduced  from  [ibid.  xiv. 
27],  "  To  this  evil  congregation,"  which  was  of  the  ten  spies, 
except  Joshua  and  Caleb.  And  whence  do  we  deduce  that  three 
more  are  needed  ?  From  [Ex.  xxiii.  2]:  "  Thou  shalt  not  follow 
a  multitude  to  do  evil" — from  which  we  infer  that  you  shall 
follow  them  to  do  good.  But  if  so,  why  is  it  written  at  the  end 
of  the  same  verse,  "  Incline  after  the  majority,  to  wrest  judg- 
ment"?! This  means,  the  inclination  to  free  the  man  must 
not  be  similar  to  the  inclination  to  condemn ;  as  to  condemn 
a  majority  of  two  is  needed,  while  to  free,  the  majority  of  one 
suffices.  And  a  court  must  not  consist  of  an  even  number,  as, 
if  their  opinion  is  halved,  no  verdict  can  be  established ;  there- 
fore one  more  must  be  added.     Hence  it  is  of  twenty-three. 

How  many  shall  a  city  contain  that  it  shall  be  fit  for  a 
supreme  council  ?  One  hundred  and  twenty  families.  R.  Nehe- 
miah,  however,  maintains:  Two  hundred  and  thirty — so  that  each 
of  them  should  be  the  head  of  ten  families,  as  we  do  not  find  in 
the  Bible  rulers  of  less  than  ten. 

GEMARA:  Are  not  robbery  and  wounds  civil  cases  ?  Said 
R.  Abuhu :  The  Mishna  means  to  explain  the  term  "civil 
cases"  by  robbery  and  wounds;  but  to  the  admitting  of  debts 
or  loans,  three  judges  are  not  needed.  And  that  so  it  should 
be  understood,  both  expressions  were  needed ;  as,  if  it  stated 
civil  cases  only,  it  would  include  loans,  etc. ;  and  if  the  expres- 
sion "  robbery,"  etc.,  only,  one  might  also  say  the  same  is  the 
case  with  loans,  etc.;  and  the  expression  "robbery,"  etc.,  is 
because  the  main  point  wherein  three  judges  are  prescribed  by 
the  Scriptures  is  in  cases  of  robbery  [Ex.  xxii.  7]:  "  Shall  the 
master  of  the  house  be  brought  unto  the  judges."  And  con- 
cerning wounds,  it  is  the  same  whether  a  wound  be  in  one's 
body  or  in  his  pocket  (money),  and  therefore  it  begins  with  civil 
cases,  and  explains  that  cases  like  robbery  are  meant,  and  not 
common  ones,  etc.  But  whence  are  common  loans  excluded, 
that  they  do  not  need  three  ?  Did  not  R.  Abuhu  say:  If  two 
persons  have  judged  in  a  matter  of  civil  law,  all  agree  that  their 

*  Leeser  translates,  "to  deliver,"  the  meaning  of  which  is  to  save,  as  it  is 
adopted  in  the  original  text. 

f  Leeser's  translation  here  is  incorrect,  not  only  according  to  the  Talmud,  but 
also  to  ihc  punctuation  of  the  verse. 


4  THE   BABYLONIAN   TALMUD. 

judgment  is  of  no  value  ?  Therefore  we  must  say  that  the 
Mishna  means  to  exclude  loans  and  admission  of  debts — to  ex- 
clude from  three  established ]ndg&s;  but  three  common  men  are 
needed.  And  the  reason  is  what  R.  Hanina  said:  Biblically, 
investigation  is  needed  of  crimes  as  well  as  of  civil  cases.  As  it 
is  written  [Lev.  xxiv.  22]:  "  One  manner  of  judicial  law  shall 
ye  have."  But  why  was  it  said  that  civil  cases  do  not  need  in- 
vestigation ?  In  order  not  to  lock  the  door  to  borrowers.  And 
Rabha  explained  this  statement  as  meaning  that  in  two  kinds  of 
civil  cases — loans,  etc. — three  common  people  are  needed ;  but 
in  cases  of  robbery,  etc.,  three  established  judges.  And  R.  Aha 
b.  R.  Ekha  said :  Biblically,  even  one  is  fit  to  decide  civil  cases, 
as  it  is  written  [ibid.  xix.  15]:  "In  righteousness  shalt  thou 
judge  thy  neighbor. "  But  the  rabbis  enacted  three,  in  order  to 
prevent  men  of  the  market,  who  are  ignorant  of  law,  to  under- 
take to  judge  cases.  But  is  it  not  the  same  with  three  common 
men  ?  Are  they  not  men  of  the  market  ?  If  three  undertake 
to  judge  a  case,  it  is  highly  probable  that  at  least  one  of  them 
knows  something  of  law.  But  if  so,  let  two  who  should  make 
an  error  in  judging  not  be  responsible  ?  If  this  should  be  en- 
acted, then  all  the  market  people  would  undertake  to  decide 
upon  things. 

But  what  is  the  difference  between  Rabha  and  R.  Aha  b.  R. 
Ekha  (according  to  both,  three  common  men  are  needed  in  cases 
of  common  loans,  etc.)  ?  They  differ  in  the  following,  which 
was  said  by  Samuel :  If  two  commoners  have  decided  upon  loan 
cases,  their  decision  is  to  be  respected ;  but  they  are  considered 
an  impertinent  Beth  Din.  Rabha  does  not  hold  with  Samuel, 
and  maintains:  Their  decision  must  not  be  respected.  And  R. 
Aha  holds  with  him  (Samuel). 

"  Wlwle  damages  and  half,''  etc.  Are  not  damages  the  same 
as  wounds  (both  are  to  be  paid)  ?  Because  it  has  to  state  half 
damages,  it  mentions  also  whole  damages.  Are  not  half  dam- 
ages also  the  same  ?  The  Mishna  teaches  concerning  money 
which  is  to  be  collected  according  to  the  strict  law  and  that 
which  is  only  a  fine.  But  this  is  correct  only  as  to  him  who 
says  that  half  damages  are  a  fine ;  but  as  to  him  who  says  half 
damages  are  strict  law,  what  can  be  said  ?  Because  it  has  to 
state  about  the  double  amount,  and  four  and  five  fold,  which  are 
more  than  the  amount  damaged,  it  mentions  also  half  damages, 
which  is  less;  and  as  half  is  mentioned,  it  mentions  also  the 
whole. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  5 

Whence  do  we  deduce  that  three  are  needed  ?  From  what 
the  rabbis  taught.  It  treats  [Ex.  xxii.  7  and  8]  three  times  of 
judges;  hence  three  are  needed.  So  said  R.  Yachiha.  R.  Jon- 
athan, however,  maintains:  The  first  expression  "  judges,"  as 
the  beginning,  must  not  be  taken  into  consideration,  as  it  is 
needed  for  itself,  and  therefore  only  the  two  expressions 
"judges,"  mentioned  after,  are  to  be  counted,  and  the  third  one  is 
added  only  because  we  do  not  establish  a  court  of  an  even 
number  (as  said  above).  jt.   iPt'^o^' 

The  rabbis  taught:  Civil  cases  are  to  be  discussed  by  three.  c^-  P 
Rabbi,  however,  said :  It  is  discussed  by  five,  so  that  the  final 
decision  should  be  by  three.  But  even  when  there  are  three,  is 
not  the  final  decision  made  by  two  ?  He  means  to  say,  because 
the  conclusion  must  be  of  three  judges.  This  explanation  was 
ridiculed  by  R.  Abuhu,  saying:  On  such  a  theory,  then  the  great 
Supreme  Council  ought  to  be  one  hundred  and  forty-one,  to  the 
end  that  the  final  conclusion  should  be  made  by  seventy-one; 
and  of  a  small  council  there  ought  to  be  forty-five,  so  that  the 
conclusion  should  be  made  by  twenty-three.  And  therefore  we 
must  say,  as  the  Scripture  reads,  "  Gather  unto  me  seventy,"  it 
means  the  seventy  ought  to  be  at  the  time  established.  And  the 
same  is  it  in  the  case  above  cited,  "  the  congregation  shall  judge, 
and  the  congregation  shall  save,"  meaning  that  at  the  time  of 
judging  there  shall  be  ten.  And  in  the  same  way  are  to  be  inter- 
preted the  just  cited  verses  7  and  8,  that  the  plaintiff  has  to 
bring  his  case  before  three  only.  Therefore  it  may  be  said  that 
the  reason  of  Rabbi's  decision  is  that  because  in  the  first  verse 
is  written,  "  The  judges  may  condemn,"  as  in  the  last,  three  is 
meant,  so  is  it  with  the  word  Elohim,  mentioned  before,  which 
means  judges,  also  two  is  meant,  which  makes  four;  and  one 
is  added,  so  that  they  shall  not  be  an  even  number — hence  five. 
The  rabbis  do  not  care  for  this,  as  the  term  which  is  translated, 
"  They  may  condemn,"  is  written  in  the  singular,  and  is  only 
read  in  the  plural. 

The  rabbis  taught :  Civil  cases  are  decided  by  three ;  but  if  one 
is  known  to  the  majority  of  the  people  as  an  expert,  he  alone  may 
decide.  Said  R.  Na'hman :  e.g.,  I  decide  cases  alone,  without 
consulting  any  other  rabbis.     And  so  also  said  R.  Hyya. 

The  schoolmen  propounded  a  question  :  What  does  R.  Na'h- 
man mean  by  saying:  As,  for  instance,  I  ?  Does  he  mean  sim- 
ilar to  him,  who  knew  the  laws  traditionally  and  by  common 
sense,  and  was  also  so  empowered  by  the  Exilarch;  but  if  there 


6  THE    BABYLONIAN   TALMUD. 

was  one  who  was  equal  to  him  in  wisdom,  but  had  no  permis- 
sion, his  decision  must  not  be  respected  ?  Or  does  he  mean  to 
say,  if  one  were  equal  to  him  in  wisdom  he  might  so  do  without 
permission  ?  Come  and  hear:  Mar  Zutra,  the  son  of  R.  Na'h- 
man,  made  an  error  in  one  of  his  decisions,  and  came  to  question 
R.  Joseph  whether  he  must  make  good  the  error.  To  which  he 
answered:  If  he  was  appointed  by  the  parties  as  a  judge,  he  had 
not  to  pay;  if  not,  he  must  pay.  Infer  from  this  that  he  who  is 
appointed  by  the  parties  may  so  do  even  without  permission 
from  a  higher  court. 

Said  Rabh:  If  one  wants  to  decide  cases,  and  not  be  respon- 
sible in  case  of  an  error,  he  shall  get  permission  from  the  Exi- 
larch.     And  so  also  said  Samuel. 

It  is  certain  that  here  in  Babylon  a  permission  from  the  Ex- 
ilarch  holds  good  for  the  whole  country;  and  the  same  is  the 
case  from  the  Prince  in  Palestine,  for  the  whole  of  Palestine  and 
Syria.  And  it  is  also  certain  that  if  one  has  a  permission  from 
the  Exilarch,  he  may  practise  in  Palestine.  As  the  following 
Boraitha  states:  The  sceptre  shall  not  depart  from  Judah. 
These  are  the  exilarchs  of  Babylon,  who  rule  over  Israel  with 
their  sceptres.  "  And  a  lawgiver,"  etc.,  [Gen.  xlix.  lo]  means 
the  grandsons  of  Hillel,  who  are  teaching  the  Torah  among  the 
majority  of  the  people.  The  question,  however,  is,  if  with  the 
permission  of  the  princes  they  may  judge  in  Babylon  ? 

Come  and  hear:  Rabba  b.  Hana  had  decided  a  case  and 
erred,  and  came  to  question  R.  Hyya  whether  he  had  to  pay. 
To  which  he  answered:  If  the  parties  appointed  you  as  a  judge, 
you  have  nothing  to  pay;  but  if  not,  you  have.  Now,  as  Rabba 
b.  Hana  had  permission  from  Palestine,  and  would  be  obliged 
to  pay  if  not  appointed,  it  is  to  be  inferred  that  the  permission 
from  Palestine  did  not  hold  good  in  Babylon.  But  is  it  not 
a  fact  that  Rabba  b.  R.  Huna,  when  he  would  quarrel  with  the 
house  of  the  Exilarch,  used  to  say:  I  did  not  take  any  permis- 
sion from  you,  but  from  my  father,  who  had  it  from  Rabh,  and 
the  latter  from  R.  Hyya,  and  the  latter  from  Rabbi  ?  This  was 
concerning  worldly  affairs  only.  But  if  the  permission  of  Pal- 
estine does  not  hold  good  for  Babylon,  why  did  Rabba  b.  Hana 
take  it  ?  For  the  cities  which  are  situated  on  the  boundary  of 
Palestine.  How  was  the  case  when  he  took  the  permission  ? 
When  he  was  about  to  descend  from  Palestine  to  Babylon,  R. 
Hyya  said  to  Rabbi:  My  brother's  son,  Rabba  b.  Hana,  de- 
scends to  Babylon,     And  Rabbi  answered:   He  may  teach  the 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).  7 

law,  decide  civil  cases,  and  may  also  decide  upon  the  blemishes 
of  first-born  animals  which  are  prohibited  to  be  slaughtered  with- 
out a  blemish  on  their  body.* 

When  Rabh  was  about  to  go  to  Babylon,  R.  Hyya  said  to 
Rabbi:  The  son  of  my  sister  goes  to  Babylon.  Said  Rabbi: 
He  may  teach  the  law,  decide  cases,  but  not  about  blemishes  of 
the  first-born  of  animals. 

Why  did  R.  Hyya  name  the  first  "  my  brother's  son  "  and 
the  second  "  my  sister's  son  "  ?  And  lest  one  say  that  so  was 
the  case,  did  not  the  master  say:  Abu,  Hana,  Shila,  Marta,  and 
R.  Hyya  all  were  the  sons  of  Abba  b.  Aha  Kharsala  of 
Khaphri  ?  (Hence  Rabh,  who  was  Abu's  son,  was  also  his 
brother's  son — why  did  lie  say  "  my  sister's  "  ?) 

Rabh,  who  was  his  brother's  and  also  his  sister's  son  (on 
his  mother's  side),  he  named  him  "  the  son  of  my  sister";  but 
Rabba  b.  Hana  was  the  son  of  his  brother  only.  And  if  you 
wish,  it  may  be  said  that  R.  Hyya  named  him  "  my  sister's," 
because  of  his  great  wisdom.  As  it  is  written  [Prov.  vii.  4] : 
"  Say  unto  wisdom,  Thou  art  my  sister."  But  why  should 
Rabh  not  be  permitted  to  decide  about  blemishes  ?  Was  he  not 
wise  enough  for  this  ?  Is  it  not  a  fact  that  he  was  wiser  than 
any  of  his  contemporaries  ?  Or  was  he  not  acquainted  enough 
with  the  kind  of  blemishes  ?  Did  not  Rabh  say:  I  have  dwelt 
eighteen  months  with  a  pasturer  of  cattle  to  learn  the  blemishes 
which  are  temporary,  and  those  which  remain  forever  ?  This 
was  done  that  Rabba  b.  Hana  should  be  respected,  as  Rabh  was 
highly  respected  even  without  that.  And  if  you  wish,  it  might 
be  said  that  because  of  the  fact  itself,  that  Rabh  was  an  expert 
concerning  blemishes,  it  was  not  allowed  to  him  to  practise,  for 
the  reason  that  Rabh  would  allow  such  blemishes  as  other  ex- 
perts were  not  aware  of,  and  people  who  should  see  that  would 
act  likewise,  relying  upon  Rabh,  so  that  they  would  finally  allow 
the  animal  which  had  a  temporary  blemish  to  be  slaughtered. 

It  is  said  above:  "  Rabbi  said:  He  shall  teach  law."  To 
what  purpose  was  this  said  ?  Does  such  a  scholar  as  Rabh  need 
such  a  permission  for  teaching  ?     This  was  said  because  of  the 

*  The  first-born  of  cattle  which  mig^ht  be  legally  eaten,  and  also  of  an  ass,  hiid 
biblically  to  be  submitted  to  the  priest  when  the  Temple  was  in  existence  ;  but  after 
the  destruction  of  the  Temple  they  had  to  be  raised  until  a  blemish  on  their  bodies 
appeared.  But  what  kind  of  a  blemish  made  them  fit  for  slaughtering  ?  They  had 
to  be  examined  by  an  expert  who  understood  blemishes,  and  was  familiar  with  the 
entire  law  ;  and  a  permission  was  needed  for  the  expert. 


8  THE   BABYLONIAN   TALMUD. 

following  case :  It  happened  that  Rabbi  went  into  a  certain  place 
and  saw  that  they  kneaded  dough  without  offering  a  sample  for 
legal  purity.  And  to  the  question  why  they  did  so,  their  answer 
was  :  There  was  a  disciple  who  taught :  Water  of  Bzein  (swamp) 
does  not  make  articles  subject  to  defilement.  In  reality,  how- 
ever, the  expression  was:  "  Mee  Beizim,"  which  means  eggs; 
and  they  took  it  for  Bzein,  and  acted  accordingly.  And  there- 
fore it  was  taught:  A  decree  was  enacted  that  a  disciple  should 
not  teach  unless  he  had  the  permission  of  his  master. 

Tanchun,  the  son  of  R.  Ami,  happened  to  be  in  the  city  of 
Hthar,  and  lectured  :  One  may  wet  wheat  and  pound  for  peeling 
on  Passover.  And  they  said  to  him:  Is  not  there  here  R.  Mani 
of  the  city  of  Zur,  who  is  a  great  scholar,  and  there  is  a  Boraitha : 
A  disciple  must  not  decide  a  Halakha  at  the  place  of  his  master, 
unless  distant  from  him  three  parsas — which  distance  Israel 
took  when  travelling  in  the  desert.  And  he  answered  :  I  was  not 
aware  of  this. 

R.  Hyya  saw  a  man  standing  in  a  cemetery,  and  said  to  him : 
Are  you  not  the  son  of  so  and  so,  who  was  a  priest  ?  He 
said  :  Yea,  but  my  father  was  one  of  those  who  follow  their  eyes. 
He  saw  a  divorced  woman  and  married  her,  and  with  this  he 
annulled  the  priesthood. 

It  is  certain,  when  one  takes  a  permission  to  give  judgment 
in  part,  that  it  holds  good  (as  so  it  was  with  Rabh).  But  how 
is  it  if  the  permission  was  conditionally  for  a  certain  time  ? 
Come  and  hear  what  R.  Johanan  said  to  R,  Shauman:  You  have 
our  permission  until  you  shall  return  to  us. 

The  text  says:  Samuel  said:  If  it  was  decided  by  two,  their 
decision  is  valid;  but  they  are  called  an  impertinent  Beth  Din. 
R.  Na'hman  repeated  this  Halakha,  and  Rabha  objected  from 
the  following:  If  two  are  defending  and  two  are  accusing,  and 
one  says,  "  I  do  not  know  how  to  decide,"  judges  must  be 
added ;  now,  if  it  were  as  you  say,  that  the  decision  of  two  is 
valid,  let,  then,  the  decision  of  the  two  hold  good  ?  There  it 
is  different,  as  they  start  with  the  intention  that  it  should  be 
decided  by  three.  He  then  objected  to  him  from  the  following: 
Rabban  Simeon  b.  Gamaliel  said:  Judgment  in  accordance  with 
the  strict  law  must  be  decided  by  three.  In  an  arbitration, 
however,  two  suffice;  and  the  strength  of  the  mediation  is 
greater  than  that  of  the  law;  as,  if  there  were  two  who  had 
decided  a  case  in  accordance  with  the  law,  although  they  were 
appointed  by  the  parties,  they  (the  parties)  may  retract.     But 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  9 

if  a  mediation  was  made  by  the  arbitrators,  no  retraction  can 
take  place.  And  lest  one  say  that  the  rabbis  differ  with  R. 
Simeon,  did  not  R.  Abuhu  say:  All  agree  that  a  decision 
passed  by  two  is  valueless  ?  And  he  answered :  Do  you  oppose 
one  man  to  another  (Abuhu  may  say  so,  and  Samuel  otherwise)  ? 
R.  Abba  objected  to  R.  Abuhu  from  the  following:  If  one 
has  decided  upon  a  case — freed  the  guilty,  or  pronounced  guilty 
the  innocent,  or  decided  unclean  a  thing  which  is  clean,  or  vice 
versa,  the  act  is  valid  and  he  must  pay  from  his  pocket.  (Hence 
we  see  that  even  the  decision  of  one  is  respected.)  This  Bo- 
raitha  speaks  of  when  the  parties  had  appointed  him  for  this 
purpose.  But  if  so,  why  must  he  pay  ?  It  means,  if  they  tell 
him :  We  appoint  you  to  decide  this  case  in  accordance  with  the 
biblical  law. 

Said  R.  Safras  to  R.  Abba :  Let  us  see  what  was  the  error. 
If  the  error  was  that  he  decided  against  a  Mishna,  did  not  R. 
Shesheth  say  in  the  name  of  R.  Assi  that  he  who  made  an  error 
as  to  a  Mishna  might  retract  from  his  decision  ?  Hence  such 
a  decision  is  not  valid,  and  he  has  not  to  pay  from  his  pocket. 
Therefore  it  must  be  said  that  it  means  he  erred  in  his  opinion. 
How  is  this  to  be  understood  ?  Said  R.  Papa  :  E.g.,  there  were 
two  Tanaim  and  two  Amoraim  who  differed  in  a  case,  and  it  was 
not  decided  with  whom  the  Halakha  prevailed.  However,  the 
world  practised  according  to  one  party,  and  he  had  decided  the 
case  according  to  the  other  party;  and  this  could  be  called 
erring  in  one's  opinion. 

Shall  we  assume  that  in  that  case  in  which  Samuel  and  R. 
Abuhu  differ,  the  Tanaim  of  the  following  Boraitha  also  differ: 
Arbitrating  must  be  done  by  three  persons.  So  is  the  decree 
of  R.  Meir.  The  sages,  however,  maintain :  One  is  sufficient  .? 
The  schoolmen  who  heard  this  thought  that  all  agree  that  arbi- 
tration  is  similar  to  a  strict  law,  and  therefore  they  assumed 
that  the  point  of  their  difference  was:  R.  Meir  holds  three  are 
needed,  and  the  sages  that  two  sufifice.  Nay,  all  agree  that  a 
strict  law  must  be  decided  by  three,  and  the  point  of  their  dif- 
fering is:  Whether  arbitration  must  be  similar  to  a  strict  law: 
according  to  one  it  must,  and  according  to  the  other  it  must  not. 
Shall  we  assume  that  there  are  three  Tanaim  who  differ  con- 
cerning arbitration  ?  One  holds:  Three  are  needed  ;  the  second, 
two;  and  the  third,  that  even  one  is  sufficient.  Said  R.  Aha  b. 
R.  Ekha,  according  to  others  R.  Yema  b.  Chlamia:  He  who 
says  two  are  needed  holds  that  even  one  is  sufficient;  and  only 


lo  THE   BABYLONIAN   TALMUD. 

to  the  end  that  they  should  be  able  to  testify  to  this  case  as  wit- 
nesses did  he  say  two.  Said  R.  Ashi :  Infer  from  this  that  an 
arbitration  does  not  need  a  sudarium;  for  if  it  should  be  neces- 
sary, why  should  not  the  one  who  maintains  that  three  are 
needed  be  satisfied  with  two  and  a  sudarium  ?  The  Halakha, 
however,  prevails :  An  arbitration  needs  a  sudarium. 

The  rabbis  taught :  Even  as  a  strict  law  needs  three,  so  is 
it  with  arbitration.  However,  when  the  decision  is  already 
given  in  accordance  with  the  strict  law,  an  arbitration  cannot 
take  place.  R.  Eliezer,  the  son  of  R.  Jose  the  Galilean, 
used  to  say:  It  is  prohibited  to  mediate,  and  he  who  should 
do  so  sins;  and  he  who  praises  the  mediators  despises  the 
law,  as  it  is  written  [Ps.  x.  3]:  "The  robber  blesseth  himself 
when  he  hath  despised  the  Lord."  But  it  may  be  taken  as 
a  rule  that  the  strict  law  shall  bore  the  mountain,  as  it  is 
written  [Deut.  i.  17]:  "  The  judgment  belongs  to  God."  And 
so  was  it  said  by  Moses  our  master.  But  Aaron  (his  brother) 
loved  peace,  ran  after  it,  and  used  to  make  peace  among  the 
people,  as  it  is  written  [Mai.  ii.  6] :  "  The  law  of  truth  was  in 
his  mouth,  and  falsehood  was  not  found  on  his  lips;  in  peace 
and  equity  he  walked  with  me,  and  many  did  he  turn  away  from 
iniquity."  And  R.  Jehoshua  b.  Karha  also  said:  Arbitration  is 
a  meritorious  act,  as  it  is  written  [Zech.  viii.  16]:  "  With  truth 
and  the  judgment  of  peace,  judge  ye  in  your  gates."  How  is 
this  to  be  understood  ?  Usually,  when  there  is  judgment,  there 
is  no  peace;  and  vice  versa.  It  must  then  be  said  that  an  arbi- 
tration is  a  judgment  which  makes  peace.  So  also  was  it  said 
about  David  [II  Sam.  viii.  16] :  "  And  David  did  what  was  just 
and  charitable"^  unto  all  his  people." 

Here,  also,  "  just  "  and  "  charitable  "  do  not  correspond;  as 
if  just,'  it  could  not  be  called  charitable,  and  vice  versa.  Say, 
then,  it  means  arbitration,  which  contains  both. 

The  first  Tana,  however,  who  said  above  that  arbitration  is 
prohibited,  explains  the  passage  thus:  He,  David,  judged  in 
accordance  with  the  strict  law—he  acquitted  him  who  was  right, 
and  made  responsible  him  who  was  so,  according  to  the  law; 
but  when  he  saw  that  the  culpable  one  was  poor  and  could  not 
pay,  he  used  to  pay  from  his  pocket.  Hence  he  did  judgment 
to  one  and  charity  to  the  other.  Rabbi,  however,  could  not 
agree  with    such  an    explanation,   because   of  the   expression, 

*  Zdakha  is  the  term  in  Hebrew,  which  means  also  charity. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  n 

"  unto  all  his  people  "  ;  and  according  to  the  above  explanation, 
it  ought  to  be"  to  the  poor."  Therefore  said  he:  Although  he 
did  not  pay  from  his  pocket,  it  was  counted  as  a  charitable  act 
that  he  delivered  a  theft  out  of  the  hands  of  the  defendant. 

R.  Simeon  b.  Menasia  said:  If  two  persons  brought  a  case 
before  you,  before  you  have  heard  their  claims,  and  even  there- 
after, but  you  are  still  not  aware  to  whom  the  strict  law  inclines, 
you  may  say  to  them:  Go  and  mediate  among  yourselves.  But 
after  you  are  aware  who  is  right  according  to  the  strict  law,  you 
must  not  advise  them  to  mediate,  as  it  is  written  [Prov.  xvii. 
14]  :  "  As  one  letteth  loose  (a  stream)  of  water,  so  is  the  begin- 
ning of  strife;  therefore  before  it  be  enkindled,  leave  off  the 
contest  "  ;  which  means,  before  it  be  enkindled  you  may  advise 
a  mediation,  but  not  after  you  know  with  whom  the  law  is. 
Similar  to  this  is:  If  two  persons  came  with  a  case  before  you, 
one  being  mighty  (who  can  harm  you)  and  the  other  common, 
you  may  say  to  them,  "  I  am  not  fit  to  judge  between  you," 
so  long  as  you  have  not  heard  their  claims ;  or  even  thereafter,  not 
knowing  as  yet  to  whom  the  law  inclines.  But  you  must  not 
say  so  after  you  are  aware;  as  it  is  written  [Deut.  i.  17]:  "  Ye 
shall  not  be  afraid  of  any  man." 

R.  Jehoshua  b.  Karha  said  :  Whence  do  we  deduce  that  if 
a  disciple  were  present  when  a  case  came  before  his  master,  and 
saw  a  defence  for  the  poor  and  an  accusation  for  the  rich  (which 
his  master  might  overlook),  he  must  not  keep  silence  ?  From 
the  verse  just  cited.  R.  Hanin  said:  One  must  not  keep  in  his 
words  out  of  respect  for  anyone;  and  witnesses  also  must  be 
aware  for  whom  they  testify,  and  for  whom  their  testimony  goes. 
And  who  is  he  who  will  punish  them  for  bearing  false  witness  ? 
As  it  is  written  [Deut.  xix.  17] :  "  Then  shall  both  the  men  who 
have  the  controversy  stand  before  the  Lord."  And  the  judge 
must  also  be  aware  of  same,  as  it  is  written  [Ps.  Ixxxii.  i]: 
"God  standeth  in  the  congregation  of  God;  in  the  midst  of 
judges  doth  he  judge. "  And  so  also  it  reads  [II.  Chron.  xix.  6], 
which  was  said  by  the  king  Jehoshaphat:  "  Look  (well)  at  what 
ye  are  doing;  because  not  for  man  are  ye  to  judge,  but  for  the 
Lord." 

And  should  the  judge  say:  Why  should  I  take  the  trouble 
and  the  responsibility  to  myself  ? — therefore  it  is  written  at  the 
end  of  this  verse:  "Who  is  with  you  in  pronouncing  judg- 
ment." Hence  the  judge  has  to  decide  according  to  what  he 
sees  with  his  eyes. 


12  THE    BABYLONIAN    TALMUD. 

What  is  to  be  understood  by  final  judgment  ?  Said  R.  Jehu- 
dah  in  the  name  of  Rabh  :  When  the  judge  is  able  to  pronounce : 
You,  so  and  so,  are  guilty,  and  you,  so  and  so,  are  right.  Said 
Rabh:  The  Halakha  prevails  with  R.  Jehoshua  b.  Karha.  Is 
that  so  ?  Was  not  R.  Huna  a  disciple  of  Rabh,  and  his  custom 
was  to  question  the  parties  of  a  case  before  him :  Do  you  desire 
strict  law,  or  arbitration  ?  Hence  we  see  that  he  did  not  begin 
with  mediation;  and  R.  Jehoshua  said  that  mediation  is  a 
meritorious  act.  R.  Jehoshua,  with  his  statement,  means  also  to 
say:  Ask  the  parties  which  they  like  better.  But  if  so,  it  is  the 
same  as  what  the  first  Tana  said  {i.e.,  it  is  prohibited  to  arbitrate 
after  the  conclusion,  but  not  before  the  case  is  begun)  ?  The 
difference  between  them  is — according  to  R.  Jehoshua  it  is  a 
meritorious  act;  and  according  to  the  first  Tana  it  is  only  a  per- 
mission for  the  judge,  but  not  meritorious.  But  then  it  is  the 
same  as  R.  Simeon  b.  Menasia  said.  There  is  also  a  difference, 
as  according  to  the  latter  we  must  not  advise  an  arbitration  after 
hearing  the  claim,  which  is  not  according  to  the  former.  All 
the  Tanaim  mentioned  above  differ  with  R.  Thn'hum  b.  Hnilai, 
who  said:  The  above-cited  verse  [Ps.  x.]  was  said  concerning 
the  golden  calf  [Ex.  xxxii.  5] :  "  And  when  Aaron  saw  this." 
What  did  he  see  ?  Said  R.  Benjamin  b.  Jeptheth  in  the  name 
of  R.  Elazar:  He  saw  Chur,  who  was  killed  by  the  people.  And 
he  thought:  "  If  I  do  not  listen  to  them,  they  will  do  likewise 
with  me,  and  will  commit  a  sin,  as  written  [Lam.  ii.  20] :  *  Shall 
there  be  slain  in  the  sanctuary  of  the  Lord  the  priest  and  the 
prophet  ? '  And  they  will  have  no  remedy.  It  is  better  for 
them  that  I  should  make  the  golden  calf,  and  to  that  probably 
there  will  be  a  remedy  by  repenting." 

There  was  one  who  used  to  say:  It  is  well  for  him  who  is 
silent  while  being  reproved;  and  if  he  is  accustomed  to  do  so, 
it  prevents  a  hundred  evil  things  which  he  might  have  to  over- 
come through  quarrelling.  Said  R.  Samuel  to  R.  Jehudah:  This 
man  only  repeats  what  is  already  written  in  the  above-cited 
verse  [Prov.  xvii.  14].*  There  was  another  who  used  to  say: 
A  thief  is  not  killed  for  stealing  two  or  three  times  (?>.,  do  not 
wonder  if  the  punishment  does  not  occur  at  once,  as  finally 
it  will  come).  And  Samuel  said  to  R.  Jehudah:  This  is 
also  repeating  the  verse  [Amos,   ii.   5]:   "Thus  hath  said  the 

*  It  is  inferred  from  the  term  in  Hebrew,  "  Reshit  Madun,"  which  is  not 
translatable  into  English. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  13 

Lord,  For  three  transgressions  of  Israel,  and  for  four,  will  I  not 
turn  away  their  punishment." 

There  was  another  who  used  to  say:  Into  seven  pits  does  the 
man  of  peace  fall  and  come  out,  and  the  wicked  does  not  come 
out  from  the  first  into  which  he  falls.  And  to  this  also  said 
Samuel  to  R.  Jehudah :  It  is  a  repetition  of  the  verse,  Prov. 
xxiv.  16  :  "  For  though  the  righteous  were  to  fall  seven  times, 
he  will  rise  up  again  " ;  and  should  the  wicked  fall  in  one,*  he 
will  not  rise  again. 

There  was  another  who  used  to  say:  If  the  court  levied  on 
one's  mantle  for  a  bet  to  his  neighbor,  he  might  chant  a  song 
and  go  on  his  way.  And  to  this  the  same  said  to  the  same : 
This  also  is  to  be  understood  from  [Ex.  xviii.  23] :  "  The  whole 
of  this  people  will  come  to  its  place  in  peace." 

There  was  another  who  used  to  say:  She  slumbers,  and  the 
basket  which  was  placed  on  her  head  fell  down.  And  also  to 
this  said  Samuel:  The  same  is  understood  of  [Eccl.  x.  18]: 
"  Through  slothful  hands  the  rafters  will  sink,"  etc.  And  there 
was  another  who  used  to  say:  The  man  on  whom  I  relied  raises 
his  fist  against  me.  To  which  Samuel  referred  [Ps.  xli.  10] : 
"  Yea,  even  the  man  that  should  have  sought  my  welfare,  in 
whom  I  trusted,  who  eateth  my  bread,  hath  lifted  up  his  heel 
against  me." 

There  was  one  more  who  used  to  say:  When  love  was  strong, 
we — I  and  my  wife — could  place  ourselves  on  the  flat  of  a  sword. 
Now,  when  love  is  gone,  a  bed  of  sixty  ells  is  not  sufficient  for 
us.  To  which  R.  Huna  said:  We  can  see  this  from  the  Scrip- 
tures in  [Ex.  XXV.  22]:  "  I  will  speak  with  thee  from  above  the 
cover."  And  a  Boraitha  states  that  the  ark  measured  nine 
spans,  and  the  cover  one;  hence,  altogether,  it  measured  ten. 
Also  in  [I  Kings  vi.  2]:  "...  house  which  was  built  .  .  . 
sixty  cubits  in  length."  And  finally  we  read  [Is.  Ixvi.  i] : 
"...  where  is  there  a  house  that  ye  can  build  unto  me  ?" 
{I.e.,  when  the  Tabernacle  was  built,  ten  spans  sufficed,  and 
at  the  exile  no  house  in  the  world  could  be  found  in  which  the 
Shekinah  would  rest.) 

R.  Samuel  b.  Na'hmani  in  the  name  of  Jonathan  said:  A 
judge  who  judges  truth  to  his  fellow-men  makes  the  Shekinah 
to  rest  in  Israel;  as  the  above-cited  Psalm  Ixxxii.  I  reads:  "  God 

*  The  end  of  the  verse,  "  but  the  wicked  shall  stumble  into  misfortune,"  is  not 
found  in  the  Scriptures.  This  is  one  of  several  places  which  shows  that  at  that  time 
in  the  Bible  was  another  text. 


14  THE    BABYLONIAN    TALMUD. 

standeth  in  the  congregation  of  God;  in  the  midst  of  judges 
doth  he  judge."  And  those  who  do  the  contrary  influence  the 
Shekinah  to  leave,  as  it  is  written  [ibid,  xii.  6]:  "  Because  of 
the  oppression  of  the  poor,  because  of  the  sighing  of  the  needy, 
now  will  I  arise,  saith  the  Lord." 

The  same  said  again  in  the  name  of  the  same  authority:  A 
judge  who  takes  away  from  one  and  gives  to  another,  against 
the  law,  the  Holy  One,  blessed  be  He,  (in  revenge)  will  take 
souls  from  his  house.  Thus  it  is  read  [Prov.  xxii.  22,  23]: 
"  Rob  not  the  poor  because  he  is  poor,  neither  crush  the  afflicted 
in  the  gate;  for  the  Lord  will  plead  their  cause,  and  despoil  the 
life  of  those  that  despoil  them." 

And  he  said  again,  in  the  name  of  the  same  authority:  A 
judge  should  always  consider  as  if  a  sword  lay  between  his  shoul- 
ders and  Gehenna  was  open  under  him.  As  it  is  written  [Solo- 
mon's Song,  iii.  7,  8]:  "  Behold,  it  is  the  bed  which  is  Solo- 
mon's; sixty  valiant  men  are  round  about  it,  of  the  valiant  ones 
of  Israel.  All  of  them  are  girded  with  the  sword,  are  expert  in 
war;  everyone  hath  his  sword  upon  his  thigh,  because  of  the 
terror  in  the  night — which  means  the  terror  of  Gehenna,  which 
is  equal  to  the  night. 

R.  Jashyha,  according  to  others  R.  Na'hman  b.  Itz'hak, 
lectured:  It  is  written  [Jer.  xxi.  12]:  "  O  house  of  David,  thus 
hath  said  the  Lord:  Exercise  justice  on  (every)  morning,  and 
deliver  him  that  is  robbed  out  of  the  hand  of  the  oppressor. " 
Do,  then,  people  judge  only  in  the  morning,  and  not  during  the 
entire  day  ?  It  means,  if  the  thing  which  you  decide  is  clear  to 
you  as  the  morning,  then  do  so;  but  if  not,  do  not.  R.  Hyya 
b.  Abba  in  the  name  of  R.  Jonathan,  however,  said:  This  is  in- 
ferred from  [Prov.  vii.  4]:  "Say  unto  wisdom.  Thou  art  my 
sister,'  which  means,  if  the  thing  is  as  certain  to  you  as  that  it 
is  prohibited  for  you  to  marry  your  sister,  then  you  may  say  it, 
but  not  otherwise. 

R.  Jehoshua  b.  Levi  said:  If  there  are  ten  judges  discussing 
about  one  case,  the  collar  lies  upon  the  neck  of  all  of  them. 
But  is  that  not  self-evident  ?  It  means  even  a  disciple  who  is 
sitting  before  his  master  (although  the  result  does  not  depend 
upon  him). 

R.  Huna  used  to  gather  ten  disciples  of  the  college  when  a 
case  came  before  him,  saying:  In  case  of  error,  let  them  also 
have  sawings  of  the  beam.  And  R.  Ashi,  when  it  happened 
that  there  was  the  carcass  of  a  slaughtered  animal  to  examine  if 


TRACT    SANHEDRIN    (SUPREME    COUNCIL)  15 

it  was  legal,  used  to  gather  all  the  slaughterers  of  the  city,  for 
the  above-said  purpose. 

When  R.  Dimi  came  from  Palestine,  he  said:  R.  Na'hman 
b.  Kohen  lectured:  It  is  written  [ibid.  xxix.  4]:  "A  king  will 
through  the  exercise  of  justice  establish  (the  welfare  of)  a  land ; 
but  one  that  loveth  gifts  overthroweth  it";  meaning,  if  the 
judge  is  like  unto  a  king,  who  needs  not  the  favor  of  any  one, 
he  is  establishing  the  land;  but  if  like  unto  a  priest  who  goes 
around  the  barns  asking  for  heave-offering,  he  overthroweth  it. 
The  house  of  the  Prince  had  appointed  a  judge  who  was  igno- 
rant, and  it  was  said  to  Jehudah  b.  Na'hman,  the  interpreter  of 
Resh  Lakish:  Go  and  be  his  interpreter.  He  bent  himself  to 
hear  what  was  said  for  interpretation;  but  the  judge  said  noth- 
ing.  Jehudah  then  exclaimed:  Woe  unto  him  that  saith  to  the 
wood,  "Awake!"  "Rouse  up!"  to  the  dumb  stone.  Shall 
this  teach  ?  Behold,  it  is  overlaid  with  gold  and  silver,  and  no 
breath  whatever  is  in  its  bosom  [Hab.  ii.  19].  And  the  Holy 
One,  blessed  be  He,  will  punish  his  appointer,  as  the  following 
verse  reads:  "  But  the  Lord  is  in  his  holy  temple:  be  silent 
before  him,  all  the  earth." 

Resh  Lakish  said:  If  one  appoints  a  judge  who  is  not  fit  to 
be  such,  he  is  considered  as  if  he  were  to  plant  a  grove  in  Israel. 
As  it  is  written  [Deut.  xvi.  18]:  "  Judges  and  oiificers  shalt  thou 
appoint  unto  thyself";  and  ibid.  21  it  reads:  "  Thou  shalt  not 
plant  unto  thyself  a  grove — any  tree."  R.  Ashi  added:  And  if 
this  were  done  in  places  where  scholars  are  to  be  found,  it  is 
considered  as  if  one  should  do  it  at  the  altar,  as  the  cited  verse 
continues:  "  near  the  altar  of  the  Lord  thy  God." 

It  is  written  [Ex.  xx.  23]:  "Gods  of  silver  and  gods  of 
gold,"  etc.  Is  it  only  prohibited  from  gods  of  silver,  and  of 
wood  we  may  ?  Said  R.  Ashi :  This  means  the  judge  who  is 
appointed  by  means  of  silver  and  gold.  Rabh,  when  he  went 
to  sit  on  the  bench,  used  to  say:  By  my  own  will  I  go  to  be 
slain  {i.e.,  if  I  make  an  error  I  shall  be  punished  for  it),  without 
attending  the  needs  of  my  house;  and  I  enter,  clear  the  court, 
and  I  pray  that  the  departing  should  be  like  the  entering  (as  he 
came  without  sin,  so  should  he  depart).  And  when  he  saw  the 
crowd  run  after  him,  he  used  to  say:  "  Though  his  exaltation 
should  mount  up  to  the  heavens,  and  his  head  should  reach  unto 
the  clouds,  yet  when  he  but  turneth  round  will  he  vanish  for 
ever"  [Job,  xx.  6,  7]  (to  quiet  his  excitement). 

Mar  Zutra  the  Pious,  when  he  was  carried  on  the  shoulders 


i6  THE   BABYLONIAN   TALMUD. 

of  his  followers  on  the  Sabbaths  before  the  festivals  (each  Sab- 
bath before  the  three  festivals  they  used  to  preach  festival  laws), 
he  used  to  say  [Prov.  xxvii.  24]:  "  For  property  endureth  not 
forever,  nor  doth  the  crown  remain  for  all  generations," 

Bar  Kapara  lectured :  Whence  do  we  deduce  what  the  rabbis 
said  :  Be  deliberate  concerning  judgment  ?  From  [Ex.  xx.  23]: 
"  Neither  shalt  thou  go  up  by  steps  upon  my  altar";  and  the 
next  verse  is  :  "  These  are  the  laws  of  justice." 

R.  Eliezer  said:  Whence  do  we  know  that  the  judge  should 
not  step  upon  the  heads  of  the  whole  people  (the  hearers  of  the 
lectures  used  to  sit  on  the  floor  during  the  lectures,  and  one 
who  passed  among  them  appeared  as  if  he  were  stepping  on 
their  heads)  ?  From  the  same  cited  verse.  It  treats:  Thou 
shalt  set  before  them  the  laws  of  justice;  it  ought  to  be:  Thou 
shalt  teach  them  ?  Said  R.  Jeremiah,  and  according  to  others 
R.  Hyya  b.  Abba :  It  means  the  preparation  of  things  belong- 
ing to  judgment :  the  cane,  the  strap,  the  cornet,  and  the  san- 
dal. As  R.  Huna,  when  he  used  to  go  on  the  bench,  used  to 
say :  Bring  here  all  the  things  above  mentioned. 

It  is  written  [Deut.  i.  16] :  "  And  I  commanded  your  judges 
at  that  time."  This  was  a  warning  to  the  judges  that  they 
should  be  careful  with  the  cane  and  straps,  which  were  in  their 
hands  to  punish  them  who  rebelled.  Farther  on  it  is  written : 
"  Hear  the  causes  between  your  brethren  and  judge  right- 
eously." Said  R.  Hanina:  This  is  a  warning  to  the  court  that 
it  shall  not  listen  to  the  claims  of  one  party  in  the  absence  of 
the  other  (in  civil  cases);  and  the  same  warning  is  to  one  of  the 
parties — he  shall  not  explain  his  claim  in  the  absence  of  his 
opponent.  *"  You  shall  judge  righteously  "  means,  you  shall  de- 
liberate the  case  carefully,  and  make  it  just  in  your  mind,  and 
only  thereafter  you  may  give  your  decision. 

It  is  written:  "  Between  a  man  and  his  brother,  and  his 
stranger."  Said  R.  Jehudah:  It  means,  even  between  a  house 
and  its  attic.  {I.e.,  if  it  were  an  inheritance,  the  judge  must  not 
say:  You  both  need  dwellings — what  is  the  difference,  if  one 
take  the  house  and  one  the  attic  ?  But  he  must  appraise  the 
value  of  each  and  then  give  his  decision.  "  And  his  stranger" 
means,  if  you  hire  your  house  to  a  stranger  for  a  dwelling,  it 
cannot  be  said :  What  is  the  difference,  if  I  give  him  an  oven  or 
a  stove  ?  But  you  must  give  him  according  to  the  conditions. 
So  R.  Jehudah.  Farther  on  it  reads:  "  Ye  shall  not  recognize 
(respect)  persons  in  judgment."     According  to  R,  Jehudah,  it 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  17 

means:  You  shall  not  recognize  him  if  he  is  your  friend;  and 
according  to  R.  Elazar,  it  means:  You  shall  not  recognize  him 
as  strange  to  you,  if  he  is  your  enemy. 

The  host  of  Rabh  had  to  try  a  case  before  Rabh,  and  when 
he  entered  he  said  to  Rabh:  Do  you  remember  that  you  are  my 
guest  ?  And  he  answered :  Yea,  but  why  ?  And  he  said :  I 
have  a  case  to  try.  Rejoined  Rabh  :  I  am  unfit  to  be  a  judge 
for  your  case  (because  you  reminded  me  that  you  favored  me 
some  time  ago).  And  he  appointed  R,  Kahana  to  judge  the 
case.  R.  Kahana,  however,  had  seen  that  he  relied  too  much 
upon  Rabh,  so  that  he  would  not  listen  to  him.  He  then  said 
to  him :  If  you  listen  to  my  decision,  well  and  good ;  and  if  not, 
I  will  put  Rabh  out  of  your  mind  {i.e.,  I  will  put  you  under  the 
ban).  It  reads  farther  on  :  "  The  small  as  well  as  the  great  shall 
ye  hear."  Said  Resh  Lakish:  It  means,  you  shall  treat  a 
case  of  one  peruta  with  the  same  care  and  mind  as  you  would 
treat  a  case  involving  a  hundred  manas.  To  what  purpose  was 
this  said  ?  Is  this  not  self-evident  ?  It  means,  if  two  cases 
come  before  you,  one  of  a  peruta  and  one  of  one  hundred  manas, 
you  shall  not  say :  It  is  a  small  case,  and  I  will  see  to  it  after. 

"  Ye  shall  not  be  afraid  of  any  man;  for  the  judgment  be- 
longeth  to  God."  Said  R.  Hama  b.  R.  Hanina:  The  Holy 
One,  blessed  be  He,  said:  "It  is  the  least  for  the  wicked  to 
take  away  money  from  one  and  give  it  to  another  illegally"; 
but  they  are  troubling  me  that  I  shall  return  the  money  to  its 
owner.  "  And  I  commanded  you  at  that  time."  Above  it 
reads:  "  I  commanded  your  judges."  Said  R.  Elazar  in  the 
name  of  R.  Simlai:  This  was  a  warning  for  the  congregation, 
that  they  should  respect  their  judges;  incidentally,  also,  a  warn- 
ing to  the  judges  that  they  should  bear  with  the  congregation. 
To  what  extent  ?  Said  R.  Hana,  according  to  others  R.  Sab- 
bath i :  Even  [Num.  xi.  12]  "as  a  nursing  father  beareth  the 
sucking  child." 

It  treats  [Deut.  xxxi.  23]:  "  Thou  must  bring  this  people," 
etc.  And  inverse  7  it  is  written  :  "  Thou  must  go  with."  Said 
R.  Johanan:  Moses  said  to  Joshua:  You  and  the  elders  shall 
rule  over  them;  but  the  Holy  One,  blessed  be  He,  said:  "  TJioii 
shalt  bring  them  {i.e.,  thou  alone),  because  there  must  be  one 
ruler  to  a  generation,  and  not  two  or  many. 

There  is  a  Boraitha:  A  summons  must  be  by  the  consent  of 
three  judges.  And  this  is  in  accordance  with  Rabha,  who  said: 
If   the   messenger   of   the   court    had    summoned    one    in    the 


i8  THE    BABYLONIAN    TALMUD. 

name  of  one  of  the  three  judges  who  are  in  the  court,  the  sum- 
mons is  nothing  unless  he  state  it  is  in  the  name  of  all  the  three 
judges,  provided  it  was  not  a  court  day;  but  on  a  court  day  he 
has  to  mention  nothing. 

''Double  amount."  R.  Na'hman  b.  R.  Hisda  sent  a  mes- 
sage to  R.  Na'hman  b.  Jacob:  Let  the  master  teach  us.  In 
cases  of  fine,  how  many  persons  are  needed  ?  [What  was  the 
question — does  not  the  Mishna  state  three  ?  The  question  was, 
whether  one  judge,  who  is  an  expert,  may  do  this,  or  not  ?] 
And  the  answer  was:  This  is  stated  in  our  Mishna,  in  the  double 
amount,  and  four  and  five  fold — three.  And  it  cannot  be  said 
it  means  three  common  men ;  for  your  grandfather  said  in  the 
name  of  Rabh :  Even  ten  commoners  are  illegal  to  decide  cases 
of  fine.  Hence  the  Mishna  means  judges,  of  whom,  neverthe- 
less, three  are  needed. 

"  It  may  bring  capital  punishment.''  And  what  is  it  (mean- 
while his  claim  is  money — why  should  three  not  be  sufficient)  ? 
Said  Ula:  The  point  of  their  differing  is,  if  an  evil  tongue  is  to 
be  feared  {i.e.,  while  he  comes  to  the  court  complaining  about 
his  wife,  witnesses  may  come  and  testify  that  she  had  indeed 
sinned ;  and  then  it  is  a  crime  of  capital  punishment).  Accord- 
ing to  R.  Meir,  the  fear  of  such  is  not  to  be  taken  into  consid- 
eration;  and  according  to  the  rabbis,  it  is.  Rabha,  however, 
maintains :  The  fear  of  an  evil  tongue  is  not  taken  into  consid- 
eration by  all  of  the  parties;  but  the  point  of  their  difference  is, 
if  the  honor  of  the  first  should  be  respected  or  not.  And  it 
treats  that  twenty-three  were  gathered  for  that  case,  and  the 
husband  claimed  that  he  would  bring  witnesses  that  his  wife 
had  sinned.  But  thereafter  he  could  not  bring  witnesses,  and 
the  case  remained  as  a  claim  for  money  only,  and  then  the 
twenty^  departed.  And  he  asked  them  to  decide  at  least  his 
civil  claim.  According  to  R.  Meir,  this  case,  as  a  money  mat- 
ter, might  be  tried  by  three ;  but  according  to  the  rabbis,  we 
must  respect  the  honor  of  the  judges  gathered,  and  therefore 
even  in  the  latter  case  all  the  twenty-three  have  to  take  part. 

An  objection  was  raised  from  a  Boraitha  which  states :  The 
sages  said:  If  the  claim  was  money,  then  three  suffice;  but  if 
a  crime  which  could  bring  capital  punishment,  then  twenty- 
three  are  needed.  And  this  is  correct  only  according  to  Rabha's 
statement,  viz. :  If  the  beginning  of  the  claim  was  money,  then 
three ;  and  if  the  beginning  was  crime,  then  twenty-three.  But 
according  to  Ula's  it  is  contradictory. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  19 

Said  Rabha:  I  and  the  lion  of  our  society,  who  is  R.  Hyya 
b.  Abbim,  have  thus  explained  this:  The  Mishna  treats  of  a  case 
in  which  the  husband  brought  witnesses  that  his  wife  had  sinned, 
and  his  father-in-law  brought  witnesses  who  proved  the  first  col- 
lusive. And  his  claim  against  the  husband  was  money;  and 
therefore  three  sufficed.  But  in  a  case  where  crime  is  charged, 
twenty-three  are  necessary. 

Abayi,  however,  maintains :  All  agree  that  an  evil  tongue  is 
to  be  feared;  and  they  also  agree  that  the  honor  of  the  first 
must  be  respected.  The  Mishna,  however,  speaks  of  a  case  in 
which  the  warning  was  as  to  capital  punishment,  but  not  ston- 
ing. {I.e.,  as  will  be  explained  in  the  proper  place,  one  should 
not  be  put  to  death  for  a  crime  of  which  he  was  not  warned  that 
the  punishment  for  it  was  death;  and  according  to  some,  the 
warning  must  be:  The  punishment  for  such  a  crime  is  such  and 
such  a  death.  And  as  the  punishment  of  adultery  is  stoning, 
and  she  was  warned  only  of  death  in  general,  according  to  him 
who  holds  that  the  warning  must  state  the  kind  of  death,  in  this 
case  no  capital  punishment  can  occur.)  And  this  is  in  accord- 
ance with  R.  Jehudah,  who  said  elsewhere:  One  is  not  put  to 
death  unless  he  was  informed  in  the  warning  what  kind  of  death 
he  should  die. 

R.  Papa  maintains:  It  speaks  of  a  scholarly  woman  who  was 
aware  of  what  kind  of  punishment  pertained  to  such  a  thing;  and 
the  point  of  their  differing  is,  if  to  a  scholar  warning  is  needed. 
And  R.  Ashi  maintains:  The  warning  was  as  to  stripes,  instead 
of  capital  punishment;  and  the  point  of  their  diff"ering  is,  if 
a  trial  involving  stripes  needs  twenty-three,  in  accordance  with 
the  opinion  of  R.  Ishmael,  or  not.*  And  Rabhina  maintains  :  It 
speaks  of  when  one  of  the  witnesses  was  found  a  relative,  or  in- 
competent to  be  a  witness;  and  the  point  of  their  difference  is, 
if  the  testimony  of  the  other  witnesses  should  be  ignored  because 
of  the  incompetent  one,  or  not  (explained  at  length  in  Tract 
Maccoth).  And  if  you  wish,  it  can  be  said  that  it  speaks  of 
when  one  was  warned  by  some  others,  but  not  by  the  witnesses; 
and  there  are  some  of  the  Tanaim  who  hold  that  the  warning 
holds  good  only  when  it  was  made  by  the  witnesses.  And  it 
might  also  be  said  that  the  witnesses  contradicted  one  another, 
at  the  cross-examination,  concerning  certain  unimportant  things 
{e.g.,  how  he   and  she  were  dressed  when   the  crime  was  com- 

*  All  this  will  be  explained  in  the  proper  place  in  succeeding  volumes. 


20  THE    BABYLONIAN    TALMUD. 

mitted);  but  they  did  not  contradict  each  other  concerning  the 
important  thing  {e.g.,  the  date  and  hour).  And  there  is  a  differ- 
ence between  Tanaim  whether  such  a  contradiction  is  to  be 
taken  into  consideration,  or  not  ? 

R.  Joseph  said:  If  the  husband  brought  witnesses  that  she 
had  sinned,  and  the  father  brought  witnesses  who  proved  them 
collusive,  the  witnesses  of  the  husband  are  put  to  death,  but  do 
not  pay  the  prescribed  fine.  If,  however,  the  husband  brought 
a  third  party  of  witnesses,  who  proved  collusive  the  second 
party,  they  are  to  be  punished  both  with  death  and  with  pay- 
ment of  fine  to  the  husband. 

Rabha  said:  If  witnesses  testify  that  A  had  sinned  with  a 
betrothed  woman,  and  thereafter  they  be  found  collusive,  they 
are  put  to  death,  but  do  not  pay  the  fine;  if,  however,  they 
testified  that  A  had  sinned  with  the  daughter  of  B,  who  was 
betrothed,  they  pay  the  fine  also.  And  the  same  is  the  case  if 
they  testify  that  one  had  connection  with  an  ox,  and  they  were 
found  collusive;  if,  however,  they  testify  with  the  ox  of  so  and 
so,  they  have  to  pay  the  fine  to  the  owner  of  the  ox  also.  But 
to  what  purpose  did  he  state  the  other  case — is  it  not  the  same 
as  the  first  ?  Because  he  himself  was  in  doubt  concerning  the 
following  case:  If  one  testified  that  so  and  so  had  connection 
with  my  ox,  should  he  be  trusted  or  not  ?  Shall  we  say  that 
only  a  testimony  which  incriminates  one's  self  is  not  to  be 
trusted — because  one  is  kin  to  himself  and  cannot  make  himself 
wicked,  but  in  a  case  where  one's  property  is  involved,  we  do 
not  say  that  he  is  kin  to  his  money,  and  therefore  he  should  not 
be  trusted.  After  deliberating,  however,  he  decided  that  the 
testifying  concerning  his  ox  should  be  trusted,  as  the  latter  case 
is  not  taken  into  consideration. 

"  TJte  cases  of  stripes,''  etc.  Whence  is  this  deduced  ?  Said 
R.  Huna:  It  is  written  [Deut.  xxv.  i] :  "And  they  judge 
them,"  which  is  plural,  and  no  less  than  two;  and  as  a  court 
must  not  be  of  an  even  number,  one  is  to  be  added — hence  it  is 
three.  In  the  same  verse  it  reads:  "  And  they  justify  .  .  . 
and  they  condemn,"  which  is  also  plural,  and  no  less  than  two 
— hence  two  and  two  are  four,  and  with  the  three  mentioned 
above  it  is  seven  ? 

The  latter  terms  are  needed  for  that  which  Ula  said :  Where 
is  to  be  found  a  hint  in  the  Scriptures  concerning  collusive  wit- 
nesses ?  [A  hint — does  it  not  read  (ibid.  xix.  19):  "  Then  shall 
ye  do  unto  him  as  he  had  purposed  to  do  unto  his  brother"  ? 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).  21 

Where  is  the  hint  that  collusive  witnesses  are  to  be  punished 
with  stripes?]  From  the  above-cited  terms,  "and  they  shall 
justify  .  .  .  condemn  the  wicked:  Then  shall  it  be,  if  the 
guilty  man  deserve  to  be  beaten,"  etc.,  which  is  not  to  be 
understood  as  meaning  the  court  only,  as  the  words,  "  they  shall 
justify  the  righteous,"  would  be  superfluous  in  that  case.  And 
therefore  it  is  to  be  explained  thus:  If  there  were  witnesses  who 
had  made  the  righteous  guilty,  and  thereafter  other  witnesses 
came  and  justified  the  righteous  who  were  indeed  right,  and 
made  guilty  the  witnesses  who  accused  them  ;  then,  if  the  former 
were  to  be  punished  with  stripes,  if  found  guilty,  the  same  pun- 
ishment is  to  be  meted  to  the  guilty  witnesses. 

But  is  there  not  a  negative  commandment  in  Ex.  xx.  16: 
"Thou  shalt  not  bear  false  witness"?  This  negative  com- 
mandment is  counted  among  those  who  do  no  manual  labor; 
and  for  the  transgression  of  such,  punishment  of  stripes  is  not 
applied. 

"/;/  ^/le  name  of  IsJunacl  it  was  said,''  etc.  What  is  his  rea- 
son ?  Said  Abayi:  The  analogy  of  expression,  Rosha  (guilty). 
It  reads  [Deut.  xxv.  2]:  "  Guilty  man,"  and  [Num.  xxxv.  31]: 
"  Who  is  guilty  of  death."  As  in  case  of  death,  twenty-three 
are  needed,  the  same  is  the  case  with  stripes.  Rabha,  however, 
maintains:  His  reason  is  simple,  as  stripes  take  the  place  of 
that.  Said  R.  Aha,  the  son  of  Rabha,  to  R.  Ashi:  If  so  is  the 
case,  why  must  he  be  examined  by  the  court  to  see  if  he  can 
stand  the  forty  stripes  ?  Let  him  be  beaten  without  any  exam- 
ination;  and  if  he  cannot  stand  them,  let  him  die.  And  he  an- 
swered: It  reads  [Deut.  xxv.  3]  :  "  And  thy  brother  be  rendered 
vile  before  thy  eyes."  Hence  if  you  beat,  you  must  beat  one 
who  is  still  alive,  but  not  a  dead  body.  If  so  (said  R.  Aha 
again),  why  does  a  Boraitha  state  that  if  the  examination  shows 
that  he  can  stand  only  twenty,  he  is  beaten  with  that  number, 
which  can  be  made  a  multiple  of  three,  say  eighteen  only  ?  Let 
him  receive  twenty-one;  and  if  he  cannot  receive  the  last  stripe 
let  him  die,  as  the  last  stripe  was  on  a  body  which  was  still  alive 
{i.e.,  thrice  seven  are  twenty-one,  and  as  he  would  not  die  by 
twenty  according  to  the  examination,  the  twenty-one  would 
still  be  on  a  live  body).  Rejoined  R.  Ashi:  The  verse  reads: 
"  Thy  brother  thus  rendered  vile  before  thy  eyes,"  which  means 
that  after  the  stripes  he  shall  still  be  thy  brother,  which  would 
not  be  the  case  if  he  died  while  being  beaten. 

"  To  the  intercalary  month,''  etc.      It  does  not  state  for  the 


22  THE    BABYLONIAN    TALMUD. 

consideration  of  the  intercalary,  nor  does  it  state  for  the  con- 
secration of  the  month ;  but  for  the  intercalary  itself,  why  are 
three  needed  ?  Let  it  be  not  consecrated  at  the  thirtieth  day, 
and  it  will  become  intercalary  by  itself  {i.e.,  if  the  thirty-first 
day  be  consecrated  as  the  first  of  the  next  month,  the  past 
month  will  be  intercalary  with  one  day).  Said  Abayi :  Read : 
For  the  consecration  of  the  month.  And  so  also  we  have  learned 
in  aTosephtha:  For  the  consecration  of  the  month  and  the 
proclamation  of  a  leap  year,  three.  So  is  the  decree  of  R.  Meir. 
Said  Rabha:  You  say:  Read  "  for  the  consecration  "  ;  but  it  is 
stated  "  the  intercalary."  Therefore,  he  maintains,  the  con- 
secration in  the  additional  day  (e.g.,  the  thirtieth)  must  be  by 
three;  but  after  the  day  is  over,  no  consecration  is  needed. 
And  it  is  in  accordance  with  R.  Elazar  b.  Zadok,  who  said 
(Rosh  Hashana,  p.  i):  If  the  moon  was  not  seen  at  the  usual 
time,  no  consecration  is  needed,  as  it  was  already  consecrated 
by  heaven.  R.  Na'hman  says:  The  consecration  after  the  thir- 
tieth day  must  be  by  three;  but  at  the  thirtieth  no  consecration 
takes  place  at  all. 

And  it  is  in  accordance  with  Plimi,  who  says  in  the  follow- 
ing Boraitha:  When  the  moon  is  seen  at  her  usual  time,  no 
consecration  is  needed;  but  if  not  at  the  usual  time,  then  it 
must  be  consecrated.  R.  Ashi,  however,  maintains:  It  is  to  be 
understood,  the  consideration  if  the  month  should  be  inter- 
calary, and  the  expression  "  to  intercalary  "  means  the  consider- 
ation of  it.  And  because  it  needs  to  teach  to  proclaim  a  leap 
year,  it  says  also  intercalary.  Hence  only  to  the  consideration, 
but  not  to  the  consecration,  which  is  in  accordance  with  R. 
Eliezer,  who  said :  A  month  must  not  be  consecrated  at  any 
time,  as  it  is  written  [Lev.  xxv.  lo]:  "Ye  shall  hallow  the 
fiftieth  year,"  from  which  we  infer  that  a  year  may  be  con- 
secrated, but  not  months. 

"  Rabban  Simeon  Gamaliel,''  etc.  There  is  a  Boraitha:  How 
was  it  said  by  R.  Simeon  b.  Gamaliel  that  it  began  with  three, 
was  discussed  by  five,  and  concluded  by  seven  ?  Thus:  If  one 
of  the  three  says  it  must  be  considered,  and  the  other  two  say  it 
is  not  needed,  then  the  individual's  opinion  is  abandoned.  If, 
however,  vice  versa,  two  more  must  be  added  to  discuss  the 
matter;  and  then,  if  two  say  it  needs,  and  three  say  no,  the 
majority  is  considered.  And  if  vice  versa,  then  two  more  must 
be  added,  and  the  decision  is  according  to  the  majority. 

The  numbers  three,   five,  and  seven,  to  what  have  they  a 


TRACT    SANHEDRIN    (SUPRExME    COUNCIL).  23 

similarity  ?  R.  Itz'hak  b.  Na'hmani  and  one  of  his  colleagues, 
who  was  R.  Simeon  b.  Pazi,  and  according  to  others  just  the 
reverse,  differ.  One  said  that  the  three  were  taken  from  the 
three  verses  specifying  the  blessings  of  the  priests  (Num.  vi.  24, 
25,  26).  And  the  other  said:  Three  from  the  "three  door- 
keepers" mentioned  in  II  Kings,  xxv.  18;  and  five,  from  [ibid. 
19]:  "  The  five  men  of  those  that  could  come  into  the  king's 
presence";  and  the  seven  from  "the  seven  princes  of  Persia 
and  Media"  [Esther,  i.  14]. 

R.  Joseph  taught  the  same  as  the  latter,  and  Abayi  ques- 
tioned him :  Why  did  not  the  master  explain  this  to  us  before 
now  ?  To  which  he  answered  :  I  was  not  aware  that  you  needed 
the  explanation.  Has  it  happened  that  you  questioned  me,  and 
I  would  not  answer  ? 

The  rabbis  taught :  A  year  must  not  be  intercalated  with  one 
month,  except  by  them  who  are  invited  for  it  by  the  Nashi.  It 
happened  with  Rabban  Gamaliel,  who  commanded  that  seven 
persons  should  be  invited  for  the  morrow  in  his  attic,  for  the 
purpose  of  the  intercalation  of  the  year,  that  on  the  morrow, 
when  he  came,  he  found  eight  persons,  and  said:  He  who  was 
not  invited  shall  leave.  Samuel  the  Little  then  arose  and  said: 
I  am  the  one  who  was  not  invited.  I  came  here,  not  to  take 
part  in  the  intercalation,  but  to  get  experience  in  the  practice 
of  this  ceremony.  To  which  the  former  answered:  Sit  down, 
my  son ;  sit  down.  All  the  years  which  have  to  be  intercalated 
might  be  done  by  you.  But  so  was  the  decision  of  the  sages, 
that  such  must  be  done  only  by  the  persons  who  were  invited. 
(Says  the  Gemara:)  In  reality,  it  was  not  Samuel  the  Little,  but 
some  other,  and  he  did  so  only  not  to  bring  shame  upon  his  col- 
league. It  happened  that  as  Rabbi  was  lecturing  he  perceived 
the  odor  of  garlic,  and  he  said:  He  who  has  eaten  garlic  shall 
leave.  R.  Hyya  then  rose  and  left  the  place;  and  everyone, 
seeing  R.  Hyya  go  out,  did  the  same.  On  the  morrow  R.  Sim- 
eon, the  son  of  Rabbi,  met  R.  Hyya,  and  questioned  him:  Was 
it  you  who  disturbed  my  father  yesterday  ?  And  he  answered: 
Save  God  !  Such  a  thing  would  not  be  done  in  Israel  by  myself. 
And  from  whom  did  R.  Hyya  learn  this  ?  From  R.  Meir,  as  is 
stated  in  the  following  Boraitha:  It  happened  with  a  woman 
who  came  to  the  college  of  R.  Meir,  saying:  One  of  you  has  be- 
trothed me,  but  I  do  not  know  who  it  was.  Then  R.  Meir  arose 
and  wrote  her  a  divorce,  and  handed  it  to  her;  and  after  him, 
all  the  people  in  the  college  did  likewise.     And  from  whom  did 


24  THE    BABYLONIAN    TALMUD. 

R.  Meir  learn  this  ?  From  Samuel  the  Little;  and  Samuel  the 
Little  from  Shechanyah  b.  Yechiel,  who  said  to  Ezra  [Ezra, 
X.  2]:  "We  have  indeed  trespassed  against  our  God,  and  have 
brought  home  strange  wives  of  the  nations  of  the  land ;  yet  now 
there  is  hope  in  Israel  concerning  this  thing."  And  he,  Shecha- 
nyah, learned  this  from  Jehoshua  b.  Nun,  of  whom  it  is  said 
[Josh.  vii.  10]:  "  Get  thee  up;  wherefore  liest  thou  upon  thy 
face  ?     Israel  hath  sinned,"  etc. 

The  rabbis  taught :  Since  the  death  of  the  last  prophets, 
Haggai,  Zechariah,  and  Malachi,  the  Holy  Spirit  has  left  Israel; 
nevertheless  they  were  still  used  to  a  heavenly  voice.  It  hap- 
pened once  that  they  had  a  meeting  in  the  attic  of  the  house  of 
Guriah,  in  the  city  of  Jericho,  and  a  heavenly  voice  was  heard: 
Among  these  people  there  is  one  who  is  worthy  that  the  Sheki- 
nah  should  rest  upon  him ;  but  his  generation  is  not  fit.  And 
the  sages  turned  their  eyes  on  Hillel  the  Elder.  And  when  he 
departed,  they  lamented  him.  "  Woe,  pious!  Woe,  modesty! 
O  thou  disciple  of  Ezra."  The  same  happened  again  when  they 
had  a  meeting  in  an  attic  in  the  city  of  Yamnia,  and  the  heavenly 
voice  said  :  Among  these  people  is  one  worthy  that  the  Shekinah 
should  rest  upon  him,  but  his  generation  is  not  fit.  And  th-e 
rabbis  turned  their  eyes  on  Samuel  the  Little.  When  he  de- 
parted, he  also  was  lamented:  "  Woe,  pious!  Woe,  modesty! 
O  thou  disciple  of  Hillel!  " 

The  rabbis  taught:  A  year  must  not  be  intercalated  without 
the  Prince's  consent.  It  happened  once  that  Rabban  Gamaliel 
went  to  one  ruler  in  Syria,  and  remained  there  longer  than  was 
expected ;  and  the  sages  had  intercalated  the  year  on  the  con- 
dition that  Rabban  Gamaliel  should  agree ;  and  then,  when  he 
came,  he  said,  "  I  agree,"  and  the  year  was  intercalated  without 
any  other  ceremony. 

The  rabbis  taught:  A  leap  year  should  not  be  made  unless 
necessary,  because  of  the  spoiled  roads,  bridges  requiring  to  be 
repaired,  and  because  of  the  ovens  where  the  paschal  lambs 
were  to  be  roasted,  and  they  were  not  yet  dry;  and  for  them 
who  reside  in  exile,  and  had  left  their  places  for  Jerusalem  to 
offer  the  paschal  lamb,  but  could  not  reach  in  such  a  short  time; 
but  not  if  there  was  still  snow  or  cold,  and  also  not  for  them 
who  resided  in  exile  and  had  not  as  yet  left  their  places  for 
Jerusalem. 

The  rabbis  taught :  A  leap  year  should  not  be  made  because 
of  the  kids,  lambs,  and  pigeons  which  are  too  young.     But  this 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  35 

may  be  taken  as  a  support.  How  so  ?  Said  R.  Janai  in  the 
name  of  R.  Simeon  b.  Gamaliel:  We  inform  you  that  the 
pigeons  are  still  soft,  and  the  lambs  still  thin,  and  the  time  of 
spring  has  not  yet  arrived ;  and  it  has  pleased  me  to  add  to  this 
year  thirty  days.  An  objection  was  raised  from  the  following 
Boraitha:  How  much  is  to  be  added  to  a  leap  year?  Thirty 
days.  R.  Simeon  b.  Gamaliel  said:  One  month  of  twenty-nine 
days.  Said  R.  Papa:  If  they  wish,  they  can  make  it  with  thirty 
days;  and  if  they  wish,  with  one  month  of  twenty-nine  days. 
Come  and  see  the  difference  between  the  old,  mighty  generation 
and  that  of  the  new,  modest  one.  There  is  a  Boraitha:  It  hap- 
pened with  Rabban  Gamaliel,  who  used  to  sit  on  a  step  in  the 
court  of  the  Temple,  that  Johanan  his  scribe  was  standing  before 
him,  and  three  pieces  of  parchment  were  lying  before  him.  And 
he  told  him:  Take  one  parchment,  and  write  to  our  brethren  in 
Upper  Galilee  and  to  our  brethren  in  Lower  Galilee:  May  your 
peace  be  increased  !  We  inform  you  that  the  time  has  come  to 
separate  tithe  of  the  mounds  of  olives.  And  take  another  piece 
of  parchment,  and  write  to  our  Southern  brethren  :  May  your 
peace  be  increased !  We  inform  you  that  the  time  has  come  to 
separate  tithe  of  the  garden  sheaves.  And  take  the  third  one, 
and  write  to  our  brethren  in  exile  in  Babylon,  and  to  our  breth- 
ren in  Media,  and  to  all  other  Israelites  who  are  scattered  in 
exile:  May  your  peace  be  increased  everlastingly!  We  inform 
you  that  the  pigeons  are  soft,  and  lambs  thin,  and  the  time  of 
spring  has  not  yet  come,  and  it  pleases  me  and  my  colleagues  to 
add  to  this  year  thirty  days.  (Hence  Gamaliel  wrote:  "  pleased 
me  and  my  colleagues  "  ;  and  Simeon  his  son  did  not  mention 
his  colleagues.)  (Says  the  Gemara:)  Perhaps  this  happened 
after  R.  Gamaliel  was  discharged  and  reappointed,  as  then  he 
became  more  modest. 

The  rabbis  taught:  For  the  following  three  things  a  leap 
year  is  made:  because  of  the  late  arrival  of  spring;  of  the  un- 
ripeness of  tree-products;  and  for  the  late  arrival  of  Thkhupha 
(the  equinox).*  When  two  of  the  three  things  occur,  the  year 
is  made  intercalary;  but  not  if  one  of  them.  And  when  one  of 
the  reasons  is  spring,  all  rejoiced.  And  R.  Simeon  b.  Gamaliel 
said  :  When  Thkhupha  (the  equinox)  was  the  reason.  And  the 
schoolmen  questioned:  How  is  he  to  be  understood  ?  Does  he 
mean  that  they  rejoiced  when  the  Thkhupha  (the  equinox)  was 

*  See  Rosh  Ilashana,  p.  12,  second  edition. 


26  THE    BABYLONIAN    TALMUD. 

one  of  the  reasons,  or  does  he  mean  to  say  that  if  it  was  the 
reason  it  suflfices  to  make  the  year  intercalate  even  without  other 
reasons  ?     The  question  remains  undecided. 

The  rabbis  taught :  For  the  following  three  lands  the  leap 
year  was  made :  Judea,  Galilee,  and  the  other  side  of  the  Jordan. 
For  two  of  them,  but  not  for  one.  If  it  happened  that  Judea 
was  one  of  them,  all  rejoiced,  because  the  offer  of  the  omer  (as 
the  first  of  the  harvest)  was  brought  only  from  the  land  of  Judea. 

The  rabbis  taught :  The  year  is  to  be  made  intercalary  only 
in  the  land  of  Judea;  but  if  it  was  made  already  in  Galilee,  their 
act  is  valid.  However,  Hananiah,  the  man  of  Anni,  has  testi- 
fied that  if  the  leap  year  was  made  in  Galilee  it  was  not  consid- 
ered. And  R.  Jehudah  b.  R.  Simeon  b.  Pazi  said:  The  reason 
of  Hananiah  is  [Deut.  xii.  5] :  "  Even  unto  his  habitation  shall 
ye  refrain,"  which  means,  all  your  repairing  should  be  only  in 
the  habitation  of  the  Omnipotent. 

The  rabbis  taught:  A  leap  year  is  to  be  made  only  during 
the  day-time,  and  if  it  was  done  in  the  night  it  is  not  intercalate. 
And  the  same  is  the  case  with  the  consecration  of  the  month;  it 
holds  good  in  the  day-time,  and  not  in  the  night. 

The  rabbis  taught :  A  leap  year  must  not  be  made  in  the 
years  of  famine.  And  there  is  a  Boraitha:  R.  Meir  used  to  say: 
It  is  written  [II  Kings,  iv.  42]:  "  And  there  came  a  man  from 
Ba'al-shalishah,  and  brought  unto  the  man  of  God  bread  of  the 
firstfruits,  twenty  loaves  of  barley-bread,"  etc.  And  we  know 
by  tradition  that  the  city  of  Ba'al-shalishah  was  the  most  fruit- 
ful city  in  the  whole  land  of  Israel,  in  which  the  fruit  became 
ripe  previous  to  all  other  cities;  and  nevertheless  at  that  time 
it  was  not  ripe,  but  only  one  kind  of  grain  ;  and  not  wheat,  but 
barley,  as  so  it  reads.  And  lest  one  say  it  was  before  the  time 
the  om^er  was  to  be  brought,  therefore  it  is  written  at  the  end  of 
this  verse:  "Give  it  unto  the  people,  that  they  may  eat." 
Hence,  under  such  circumstances,  that  year  ought  to  have  been 
intercalary.  And  why  was  it  not  made  so  by  Elisha  ?  Because 
it  was  a  year  of  famine,  and  every  one  went  to  the  barns  in 
order  to  get  something  to  eat,  and  therefore  it  was  not  inter- 
calated. 

The  rabbis  taught :  The  year  must  not  be  intercalary  before 
Rosh  Hashana  {i.e.,  no  meeting  must  be  appointed  to  discuss 
upon  the  necessity  of  an  additional  month  in  the  next  year). 
Even  if  it  were  so  done,  it  is  not  to  be  taken  into  consideration. 
However,  if  circumstances  compelled  them  to  do  so,  they  may 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  27 

do  it  immediately  after  Rosh  Hashana;  but  the  additional 
month  must  be  no  other  one  than  Adar.  Is  that  so  ?  Was  not 
a  message  sent  to  Rabha:  A  couple  came  from  the  city  of 
Lecarte,  and  caught  an  eagle,  and  in  their  hands  were  found 
things  which  were  made  in  the  city  of  Luz  {e.g.,  Thkhalth,  for 
Tshitzith).  And  by  the  kindness  of  the  Merciful  One,  and  be- 
cause of  their  unripeness,  they  were  redeemed,  and  left  in  peace. 
And  the  descendants  of  Na'hshun  desired  to  establish  one  nazib 
(ruler)  more,  but  the  Aramaic  had  prevented  them.  However,  the 
prominent  men  of  the  cities  held  a  meeting,  and  added  one  ruler 
(nazib)  in  that  month  in  which  Aaron  (the  high-priest)  died. 
(Hence  we  see  that  a  meeting  about  a  leap  year  was  appointed 
in  the  month  of  Ab,  as  Aaron  died  in  that  month  ?)* 

The  discussion,  and  even  the  establishment,  may  be  done 
even  before  Rosh  Hashana;  but  it  must  be  kept  secret  until  the 
day  of  New  Year  is  past.  But  whence  do  we  know  that  with 
the  above-mentioned  word  "  nazib"  they  meant  "  a  month  "  ? 
From  [I  Kings,  iv.  7] :  "  And  Solomon  had  twelve  superintend- 
ents (nazibun)  .  .  .  for  the  king's  household,  one  month  in 
the  year  "  ;  but  ibid.  19  reads:  "  Besides  the  one  superintendent 
(nazib)  who  was  in  the  land  ?  " 

R.  Jehudah  and  R.  Na'hman — one  said:  One  manager  over 
all  the  superintendents.  And  the  other  maintains  that  this 
nazib  was  for  the  intercalary  month. 

The  rabbis  taught:  A  leap  year  must  not  be  made  in  one 
year,  for  the  next;  and  also  three  successive  years  must  not  be 
intercalary.  R.  Simeon,  however,  said :  It  happened  with  R. 
Aqiba,  that  he  established  three  leap  years,  one  after  the  other, 
while  he  was  in  prison.  And  he  was  answered:  This  is  no  evi- 
dence, as  the  court  had  established  each  leap  year  in  its  proper 
time. 

The  rabbis  taught:  A  leap  year  must  not  be  appointed, 
neither  in  the  Sabbatic  year  nor  in  the  following  year.  But 
when  were  they  used  to  be  established  ?  On  the  eve  of  the  Sab- 
batic year.  The  house  of  Rabban  Gamaliel,  however,  used  to 
appoint  it  for  the  year  following  the  Sabbatic. 

The  rabbis  taught:  No  appointment  of  a  leap  year  must  be 
because  of  defilement.     R.  Jehudah,  however,  maintains  it  may, 


*  This  riddle  was  sent  at  the  time  when  it  was  prohibited  by  the  Roman  govern- 
ment to  establish  a  leap  year,  and  even  to  discuss  about  it.  Therefore  the  message 
was  sent  as  a  riddle  so  as  to  be  unintelligible  to  those  not  concerned. 


28  THE    BABYLONIAN    TALMUD. 

and  adds:  It  happened  with  King  Hezekiah,  who  had  estab- 
lished such  because  of  defilement,  and  thereafter  he  prayed  for 
forgiveness.  As  it  is  written  [II  Chron.  xxx.  i8]  :  "  For  a  large 
portion  of  the  people,  even  many  out  of  Ephraim  and  Manas- 
seh,  Issachar,  and  Zebulun  had  not  cleansed  themselves,  but  ate 
the  Passover  not  as  it  is  written.  However,  Hezekiah  prayed 
for  them,  saying:  "  The  Lord,  who  is  good,  will  grant  pardon 
for  this." 

R.  Simeon  said :  If  they  had  established  it  because  of  defile- 
ment, it  is  intercalary;  and  Hezekiah  prayed  for  forgiveness 
because  the  law  dictates  that  only  the  month  of  Adar  shall  be 
intercalary.  He,  however,  intercalated  the  month  Nissin.  R. 
Simeon  b.  Jehudah,  however,  said  in  the  name  of  R.  Simeon: 
He  prayed  for  forgiveness  because  he  seduced  Israel  to  establish 
a  second  passover. 

The  master  said:  He  intercalated  the  month  of  Nissin.  Did 
he  not  hold  the  tradition  [Ex.  xii.  2]:  "This  month  shall  be 
unto  you  the  chief  of  months,"  which  means  Nissin;  and  it  is 
written,  this  is  Nissin,  but  no  other  month  shall  be  named 
Nissin  ?  He  erred  in  that  which  is  said  in  the  name  of  Samuel: 
In  the  thirtieth  day  of  Adar  no  intercalary  month  must  be 
appointed,  because  this  day  was  fit  that  it  should  be  the  first 
of  Nissin.  And  he,  Hezekiah,  did  not  hold  this  theory.  There 
is  also  a  Boraitha  which  states:  In  the  thirtieth  day  of  Adar  no 
month  must  be  intercalated  because  it  is  fit  to  be  the  first  of 
Nissin. 

But  how  is  it  if,  notwithstanding  this,  it  was  established  on 
that  day  ?  Said  Ula:  Then  the  month  must  not  be  consecrated 
on  that  day.  But  how  is  it  if  it  was  consecrated  also  ?  Accord- 
ing to  Rabha,  the  consecration  abolishes  the  intercalary;  and 
according  to  R.  Na'hman,  both  hold  good — the  intercalary  and 
the  consecration.  Said  Rabha  to  R.  Na'hman:  Let  us  see! 
From  Purim  to  Passover  are  thirty  days;  and  on  Purim  we 
begin  to  lecture  about  the  law  of  Passover.  Now,  if  they  should 
appoint  another  Adar  on  the  thirtieth  day  after  the  lectures  of 
Passover  were  already  heard,  people  would  not  believe  then  that 
another  month  was  appointed,  and  so  they  would  use  leavened 
bread  on  Passover.  And  he  answered:  Why,  they  would  be- 
lieve, as  they  know  the  establishment  of  a  leap  year  depends  on 
counting;  and  they  would  say  that  it  was  not  as  yet  clear  to  the 
rabbis — the  reckoning  of  this  year — until  the  thirtieth  day  of 
Adar  arrived. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  29 

R.  Jehudah  in  the  name  of  Samuel  said :  A  leap  year  must 
not  be  established  unless  the  Thkhupha  was  less  with  a  greater 
part  of  the  month,  which  are  sixteen  days.  So  is  the  decree 
of  R.  Jehudah.  R.  Jose,  however,  said:  Twenty-one  days. 
And  both  took  their  reference  from  [Ex.  xxxiv.  22] :  And  the 
feast  of  ingathering  at  the  closing  (Thkhuphat— equinox)  of  the 
year.  One  holds  that  the  whole  feast  should  be  in  the  new 
Thkhuphat;  and  the  other  holds  that  it  is  sufficient  if  a  few 
days  of  the  feast  should  occur  in  the  new  Thkhuphat.  How 
is  this  to  be  understood  ?  If  they  hold  that  the  day  in  which 
the  Thkhupha  occurs  is  counted  to  the  past  Thkhuphat,  why, 
then,  is  it  necessary  for  R.  Jehudah  that  the  Thkhuphat  shall 
be  less  with  sixteen,  and  to  R.  Jose  with  twenty-one  days  ? 
Even  if  it  would  be  less  with  fifteen  days,  according  to  R. 
Jehudah,  and  twenty  days,  according  to  R.  Jose,  the  whole 
festival  will  not  be  on  the  new  Thkhuphat  according  to  R. 
Jehudah,  as  the  fifteenth  day  of  Nissin,  which  is  the  first  day 
of  the  feast,  and  in  which  the  Thkhuphat  occurs,  is  counted  to 
the  past  Thkhuphat;  and  also  according  to  R.  Jose,  if  the 
Thkhuphat  occurs  on  the  twenty-first  day,  which  is  counted 
to  the  past,  not  one  of  the  festival  days  would  occur  on  the  new 
Thkhuphat,  as  the  festival  begins  on  the  fifteenth,  and  the 
seventh  ends  with  the  twenty-first.  Therefore  it  must  be  said, 
of  the  day  in  which  the  Thkhuphat  occurs,  both  R.  Jehudah 
and  R.  Jose  count  it  as  the  beginning  of  the  new  Thkhuphat.* 

"  Laying  the  hand  of  the  elders  upon  sacrifices.''  The  rabbis 
taught:  It  is  written  [Lev.  iv.  15]:  "And  the  elders  of  the 
congregation  shall  lay  their  hands,"  etc.  (The  expression  in 
Hebrew  is,  "  Vsomkhu  Ziqnye  Hoedha  " — literally,  "  and  they 
shall  lay,"  "  the  elders,"  "  of  the  congregation.")  From  the 
expression  Hoedha,  which  means  the  congregation,  instead  of 
elders  of  the  congregation,  it  is  deduced  that  it  means  the 
prominent  of  the  congregation,  and  from  the  plurality  of 
Vsomkhu  ("  and  they  shall  lay,"  which  means  no  less  than  two) 
and  the  plurality  of  the  elders,  who  are  also  two,  it  is  deduced 
four  persons;  and  as  the  number  of  the  court  must  not  be  even, 
one  is  added — hence  it  makes  five.  So  is  the  decree  of  R. 
Jehudah.     R.  Simeon,  however,  maintains:  There  is  only  one 

*  The  detailed  explanation  of  all  this  would  take  too  much  space.  However,  it 
will  be  understood  by  those  who  know  the  order  of  the  Jewish  calendar.  Although 
in  our  work  it  is  of  no  importance,  we  hope  that  the  reader  will  have  an  idea  of  it 
from  our  text,  without  the  detailed  explanation  and  the  discussion  following,  omitted. 


30  THE    BABYLONIAN   TALMUD. 

plurality  in  the  elders,  who  are  two,  and  one  is  added  for  the 
purpose  mentioned  above,  making  three  only.  And  there  is  a 
Boraitha:  To  laying  the  hand  upon  the  elders,  and  laying  the 
hands  of  the  elders  upon  the  sacrifices,  three  are  needed.  What 
does  this  mean  ?  Said  R.  Johanan:  Laying  the  hand  upon  the 
elders  means,  to  give  one  the  degree  of  Rabbi:  Said  Abayi  to 
R.  Jose:  Whence  do  we  deduce  this  ?  From  [Num.  xxvii.  23]  : 
"  And  he  laid  his  hand  upon  him,"  etc.  Then  let  one  be  suffi- 
cient, as  Moses  was  only  one  person;  and  lest  one  say  that 
Moses  took  the  place  of  the  Large  Sanhedrin,  who  were  seventy- 
one,  then  say  that  to  confer  a  degree  seventy-one  are  needed  ? 
This  difficulty  remains. 

Said  R.  Aha  b.  Rabha  to  R.  Ashi :  Do  we  lay  the  hands 
upon  the  man  to  whom  we  want  to  give  such  a  degree  ?  And 
he  answered :  We  support  him  with  that,  that  we  name  him 
Rabbi  and  give  him  the  permission  to  judge  about  fines  upon 
them  who  deserve  it. 

Is  it  indeed  so — that  one  man  cannot  bestow  a  degree  ?  Did 
not  R.  Jehudah  in  the  name  of  Rab  say:  Behold,  the  memory 
of  that  person  shall  remain  blessed  forever — I  mean,  R.  Jehudah 
b.  Baba,  as,  if  not  ben  Baba,  the  law  of  fines  would  be  forgotten 
from  Israel.  It  happened  once  that  the  government  passed  an 
evil  decree  upon  Israel,  that  he  who  bestowed  a  degree  should 
be  put  to  death,  and  the  same  should  be  done  with  him  who 
received  the  degree.  The  city  where  the  degree  was  conferred 
should  be  destroyed,  and  even  the  boundaries  which  were  used 
while  giving  the  degree  should  be  torn  out.  Jehudah  b.  Baba 
then  went  and  sat  between  two  great  mountains,  and  between 
two  large  cities — between  the  two  suburban  limits  of  the  cities 
of  Usha  and  Sprehen — and  conferred  the  degree  of  Rabbi  on  five 
elders';  and  they  were:  R.  Meir,  R.  Jehudah,  R.  Simeon,  R. 
Jose,  and  R.  Elazar  b.  Shamuas.  According  to  R,  Ivia,  there 
was  a  sixth  :  R.  Nehomai.  When  the  enemj^  got  wind  of  it, 
Jehudah  said  to  them:  My  children,  run  away.  And  to  their 
question:  Rabbi,  what  will  become  of  you?  he  answered:  I 
shall  remain  before  them  as  a  stone  which  cannot  be  moved. 
It  was  said  that  three  hundred  iron  spears  were  put  by  the 
enemy  into  his  body,  making  it  as  a  sieve.  (Hence  we  see  that 
even  one  person  only  is  authorized  to  give  a  degree  ?)  There 
were  some  other  persons  with  him,  but  they  were  not  mentioned, 
because  of  the  honor  of  Jehudah  b.  Baba.  Was  indeed  Meir 
elevated  by  Jehuda  ?     Did  not  Rabha  b.  Hanah  say  in  the  name 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  31 

of  Johanan  that  R.  Aqiba  gave  the  degree  to  R.  Meir  ?  Yea, 
R.  Aqiba  did  so,  but  it  was  not  accepted;  and  from  R.  Jehudah 
b.  Baba  he  accepted. 

R.  Jehoshua  b.  Levi  said:  The  custom  of  giving  degrees 
must  not  be  used  out  of  Palestine.  What  does  he  mean  ?  Shall 
we  assume  that  loss  of  fines  should  not  be  judged  at  all  out  of 
Palestine  ?  This  is  not  so,  as  there  is  a  Mishna:  Sanhedrins  are 
to  be  established  in  Palestine  as  well  as  in  other  places  out  of 
Palestine.  He  means  that  one  must  receive  his  degree  in  Pales- 
tine only. 

It  is  certain  that  a  degree  of  Rabbi  is  not  considered  when 
the  bestower  is  out  of  and  the  receiver  is  in  Palestine.  But  how 
is  it  if  the  bestower  is  in  Palestine  and  the  receiver  is  out  ? 
Come  and  hear:  R.  Johanan  was  troubled  for  R.  Shaman  b. 
Aba,  who  was  not  present  and  could  not  receive  the  degree 
R.  Johanan  wished  to  honor  him  with.  R.  Simeon  b.  Zerud 
and  his  colleague  Jonathan  b.  Ekhmai,  according  to  others  vice 
versa — one  of  them  who  was  present  they  supported  with  a 
degree,  and  the  one  who  was  not  did  not  receive  such. 

R.  Hanina  and  R.  Hoseah  were  two  about  whom  R.  Johanan 
troubled  himself  very  much,  to  honor  them  with  the  degrees 
they  deserved,  but  was  always  prevented,  whereat  he  was  very 
sorry.  Said  they  to  him :  Let  master  not  worry,  as  we  are 
descendants  of  the  house  of  Eli.  And  R.  Samuel  b.  Na'hman 
in  the  name  of  R.  Jonathan  said:  Whence  is  it  deduced  that  the 
descendants  of  Eli  are  prevented  by  Heaven  from  receiving 
degrees?  From  [I  Sam.  ii.  32]:  "And  there  shall  not  be  an 
elder  in  thy  house  in  all  times  " — which  cannot  be  meant  literally 
— "  an  old  man,"  as  it  is  written  [ibid.  33]  :  "And  all  the  increase 
of  thy  house  shall  die  as  (vigorous)  men."  Hence  it  means  a 
degree  of  an  elder  (scholar). 

R.  Zera  used  to  hide  himself  so  as  not  to  be  honored  with  a 
degree,  because  of  R.  Elazar's  statement:  Be  always  misty,  in 
order  to  have  a  better  existence.  Thereafter,  when  he  heard 
another  statement  of  the  same  authority,  "  One  is  not  raised 
to  a  great  authority  unless  all  his  sins  are  forgiven  by  Heaven," 
then  he  went  to  receive  a  degree.  When  he  was  graduated  as 
a  rabbi,  his  followers  sang  for  him  thus:  "  There  is  no  dyeing, 
no  polishing,  no  painting,  and  nevertheless  it  is  handsome  and 
full  of  grace."  When  Ami  and  Assi  were  graduated  as  rabbis, 
likewise  people  sang  of  them  thus:  "Of  such  men — of  such 
people — appoint  rabbis  for  us,  but  not  from  the  sermonisers  "  ; 


32  THE    BABYLONIAN    TALMUD. 

and    according   to   others,    "not    steel-hearted    and    impudent 
men." 

R.  Abuhu,  when  he  came  from  college  in  the  court  of  the 
Zaiser,  the  matrons  of  Zaiser's  house  used  to  sing  for  him: 
*'  Great  man  of  his  people!  ruler  of  his  nation!  candle  of  light! 
may  thy  coming  be  welcomed  in  peace." 

"  Case  of  the  heifer.''  The  rabbis  taught  [Deut.  xxi.  2]: 
"  Then  shall  thy  elders  and  thy  judges  go  forth,"  etc.  Elders, 
two,  and  judges,  two,  are  four,  etc.  (will  be  translated  in  Tract 
Souta,  as  the  proper  place). 

Plants  of  the  fourth  year  and  second  tithe, ' '  etc.  The  rabbis 
taught:  What  is  to  be  considered  second  tithe  of  which  the 
value  is  not  known  ?  Rotten  fruit,  sour  wine,  and  rusty  coins. 
They  also  taught:  Such  second  tithe  must  be  redeemed  by  the 
appraisement  of  three  buyers  who  all  know  the  price  of  such 
stock;  but  not  by  three  laymen  who  do  not  know  the  exact 
price.  Among  the  buyers  may  be  a  Gentile,  and  also  the  owner 
of  the  stock.  And  R.  Jeremiah  questioned:  How  is  it  if  the 
three  were  partners  ?  Come  and  hear:  One  and  his  two  wives 
may  redeem  the  second  tithe  of  which  the  value  is  not  known. 
Hence  it  is  allowed.  This  is  no  support,  as  this  Boraitha  may 
speak  of  such  as  were  apart  in  business.  E.g.,  R.  Papa  and  his 
wife,  the  daughter  of  Aba  of  Sura  (who  used  to  do  business 
for  herself). 

Consecrated  articles,"  etc.  Our  Mishna  is  not  in  accord- 
ance with  R.  Eliezer  b.  Jacob  of  the  following  Boraitha,  who 
said:  Even  for  a  small  fork  of  the  sanctuary,  ten  persons  are 
needed  to  appraise  the  value  for  redeeming.  Said  R.  Papa  to 
Abayi:  R.  Eliezer  is  correct  that  it  needs  ten,  as  he  may  hold 
with  the  statement  of  Samuel,  who  said:  Priests  are  ten  times 
mentioned  in  the  portion  which  speaks  of  consecrated  things. 
But  whence  did  the  rabbis  take  three  ?     This  difficulty  remains. 

"  Arakhin  .  .  .  movable  property.''  What  are  they? 
R.  Giddle  in  the  name  of  Rabh  said:  If  one  vows,  the  value  of 
this  utensil  is  to  be  consecrated,  then  it  must  be  appraised  for 
its  value,  and  he  must  pay.  R.  Hisda,  however,  said  in  the  name 
of  Abayi:  It  means,  if  one  vows  his  own  value,  and  appoints 
movable  property  for  the  collection.  R.  Abuhu  said:  If  one 
vows  his  own  value  for  the  treasurer  of  the  priests,  when  he 
came  to  collect,  if  he  collects  from  movable  property,  three 
suffice  to  appraise  it ;  but  if  from  real  estate,  ten  are  needed. 
Said  R.  Aha  of  Diphthi  to  Rabhina:  It  is  correct  that  three  are 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  ^^ 

needed  to  appraise  articles  which  are  to  be  redeemed  from  the 
sanctuary;  but  why  are  three  needed  for  bringing  into  the  sanc- 
tuary ?  And  he  answered:  It  is  common  sense.  What  is  the 
difference  between  bringing  in  and  taking  out  ?  The  reason  of 
appraisement  is  because  an  error  can  occur  by  which  the  sanc- 
tuary would  suffer;  and  this  can  take  place  in  both  taking  out 
and  bringing  in. 

"  A  priest,"  etc.  Said  R.  Papa  to  Abayi:  It  is  correct  that 
R.  Jehudah  requires  that  one  of  them  should  be  a  Cohen,  as  in 
that  portion  a  Cohen  is  mentioned  ;  but  what  is  the  reason  of  the 
rabbis,  who  do  not  require  him — and  for  what  purpose  is  a  Cohen 
mentioned,  according  to  them  ?     This  difficulty  remains. 

"Bjy  ten,  and  one  of  them  a  priest,"  etc.  Whence  is  all  this 
deduced  ?  Said  Samuel:  In  this  portion  the  word  Cohenim  is 
mentioned  ten  times,  and  only  one  of  them  is  needed  for  itself; 
and  all  the  others  are  considered  as  an  exclusion  after  an  exclu- 
sion, as  to  which  there  is  a  rule  that  such  comes  to  add  some- 
thing. And  therefore  we  add  nine  Israelites  to  one  Cohen.  R. 
Huna  b.  R.  Nathan  opposed,  saying:  Why  not  say:  Add  five 
Israelites  to  five  Cohenim  ?     This  difficulty  also  remains. 

''The  value  of  men,"  etc.  But  does,  then,  a  man  become 
consecrated  ?  Said  R.  Abuhu:  If  one  vows,  the  money  he  is 
worth  (not  according  to  age,  which  is  prescribed  biblically)  must 
be  appraised  as  if  he  were  a  slave  sold  on  the  market;  and  a 
slave  is  equal  to  real  estate.  Therefore  it  needs  ten:  R.  Abim 
questioned:  How  is  it  if  one  vows  the  value  of  his  hair,  and 
it  should  be  cut  off  ?  Shall  we  say  that  things  which  ought  to 
be  cut  off  are  considered  as  already  cut,  and  movable,  and  the 
appraisement  needs  three  only;  or,  so  long  as  it  is  attached  to 
the  body,  it  is  considered  as  the  body  itself,  and  ten  are  needed  ? 
Come  and  hear:  If  one  consecrated  his  slave,  no  transgression 
is  committed  by  using  him  for  work.  R,  Simeon  b.  Gamaliel 
said :  If  one  uses  his  hair,  it  is  a  transgression :  And  we  are 
aware  that  he  speaks  when  the  hair  in  question  is  still  attached 
to  the  body  and  is  ready  to  be  cut  off.  Hence  there  is  a 
difference  of  opinion  among  the  Tanaim. 

'  *  The  stoning  of  an  ox  .  .  .  and  the  owner  put  to  death. 
Said  Abayi  to  Rabha:  Whence  do  we  know  this  verse  means  to 
equal  the  judgment  of  the  ox  to  that  of  its  owner  ?  Perhaps 
it  is  meant  literally — that  its  owner  also  shall  be  put  to  death  ? 
Said  Hezekiah,  and  so  also  was  it  taught  by  his  school :  It  is 
written   [Num.  xxxv.    21]:  "  He  who  smites  him   shall   be  put 


34  THE    BABYLONIAN    TALMUD. 

to  death,  for  he  is  a  murderer."  From  which  we  infer  that 
only  when  he  himself  smote  is  he  to  be  put  to  death:  but  he  is 
not  to  be  killed  for  the  death  by  his  ox. 

"  The  wolf,  the  lion,''  etc.  Said  Resh  Lakish:  This  is  in  case 
they  have  killed  some  one;  but  if  not,  it  is  not  a  meritorious  act 
to  kill  them.  [Hence  we  see  that  he  holds  that  these  beasts 
can  be  considered  the  property  of  one  who  domesticates  them.] 
R.  Johanan,  however,  maintains:  In  any  case,  it  is  a  meritorious 
act  to  kill  them,  [Hence  he  holds  that  they  cannot  be  domesti- 
cated, and  are  considered  ownerless.] 

There  is  an  objection  from  our  Mishna:  R.  Eliezer  says: 
Every  one  who  hastens  to  kill  them  is  rewarded — which  is  correct 
according  to  R.  Johanan,  who  may  explain  the  word  "  re- 
warded" — with  the  skin  of  the  animal;  but  according  to  Resh 
Lakish,  who  said,  only  when  they  have  killed,  there  is  a  rule 
that  when  so  it  was,  the  rabbis  considered  them  as  if  they  were 
already  sentenced  to  death  by  the  court,  and  in  such  a  case  it  is 
prohibited  to  derive  any  benefit  from  them.  What,  then,  means 
Eliezer  by  the  expression  "  he  is  rewarded  "  ?  It  means  that  he 
will  be  rewarded  by  Heaven.  There  is  a  Boraitha  in  accordance 
with  Resh  Lakish,  as  follows:  An  ox,  as  well  as  other  animals 
or  wild  beasts  which  kill,  must  be  judged  by  twenty-three.  R. 
Eliezer,  however,  maintains:  An  ox  which  has  killed,  by  twenty- 
three;  but  as  to  all  wild  beasts,  he  who  hastens  to  kill  them  will 
be  rewarded  by  Heaven. 

"7?.  Aqiba  says,''  etc.  Is  it  not  the  same  as  the  first  Tana  ? 
They  differ  in  the  case  of  a  serpent. 

"  A  whole  tribe," ^tc  Let  us  see  what  sin  a  whole  tribe  may 
commit.  Shall  we  assume  that  it  has  violated  the  Sabbath  ? 
We  know  that  there  is  a  difference  between  an  individual  and  a 
majority  only  in  the  case  of  idolatry;  but  in  the  other  command- 
ments there  is  no  difference,  according  to  the  Scripture.  And 
if  it  means  that  the  whole  tribe  was  accused  of  idolatry,  and 
they  should  be  judged  as  a  majorit)^,  then  our  Mishna  is  neither 
in  accordance  with  R.  Jashiah  nor  with  R.  Jonathan  of  the  fol- 
lowing Boraitha:  How  many  people  must  be  in  the  city  which 
shall  be  misled  ?  From  ten  to  one  hundred.  So  is  the  decree 
of  R.  Jashiah.  R.  Jonathan,  however,  maintains:  From  one 
hundred  up  to  the  majority  of  the  tribe.  Now  we  see  that  even 
Jonathan  says  the  majority,  but  not  the  whole  tribe.  Said  R. 
Mathna:  It  means  the  Prince  of  the  tribe  only.  As  R.  Ada  b. 
Ahaba  explains  [Ex.  xviii.  22]:  "  Every  great  matter"  means. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         35 

the  matter  of  a  great  man ;  so  also  here,  by  the  whole  tribe  is 
meant  the  head  of  it.  Rabhina,  however,  said:  The  Mishna 
speaks  of  a  case  in  which  the  whole  tribe  was  accused  of  idolatry, 
your  difficulty  being,  do  we  then  judge  them  as  a  majority  ?  We 
may  say.  Yea!  although  their  punishment  is  similar  to  that  of 
an  individual  who  is  to  be  stoned.  And  this  is  in  accordance 
with  R,  Hama  b.  Jose,  who  said  in  the  name  o*"  R.  Oseah :  It 
is  written  [Deut.  xvii.  5]:  "Then  shalt  thou  bring  forth  that 
man  or  that  woman  who  has  committed  this  wicked  thing,  unto 
thy  gates" — which  means  only  an  individual,  but  not  the  whole 
city,  to  thy  gates.  The  same  is  the  case  with  a  whole  tribe; 
only  an  individual  can  be  brought  to  the  gates  to  be  stoned,  but 
not  the  whole  tribe.  (Hence  they  are  judged  by  seventy-one, 
as  a  majority.) 

"  False  prophet,''  etc.  Whence  is  this  deduced?  Said  R. 
Jose  b.  Hanina:  From  an  analogy  of  expression — "presume" 
— which  is  to  be  found  in  the  case  of  a  false  prophet  [Deut.  xviii. 
20]  and  in  the  case  of  a  rebelling  elder  [ibid.  xvii.  12].  As  in 
the  latter  case  seventy-two  are  needed,  so  also  in  the  former. 
But  is  not  the  expression  "  piesumpluously  "  used  in  the  cited 
verse  concerning  death,  of  which  the  verse  reads;  and  death  is 
judged  by  seventy-three  only?  Therefore  said  Resh  Lakish: 
The  analogy  is  in  the  expression  "  Dobhor,  "which  is  mentioned 
in  both  the  verses  cited. 

''High-priest,''  etc.  Whence  is  this  deduced  ?  Said  Ada  b. 
Ahaba:  From  the  above-cited  Ex.  xviii.  22,  which  is  explained 
as  the  matter  of  a  great  man. 

"  To  decide  upon  battles,"  etc.  Whence  is  this  deduced? 
Said  R.  Abuhu:  From  [Num.  xxvii.  21]:  "And  before  Elazar 
the  priest  shall  he  stand  ...  he  and  all  the  children  of 
Israel  with  him,  and  all  the  congregation."  "  He"  means  the 
king.  '  "All  Israel  with  him  "  means  the  priest  who  was  anointed 
to  be  the  leader  of  the  war.  "  And  all  the  congregation  "  means 
the  Sanhedrin.  But  perhaps  the  cited  verse  means  that  only  for 
the  just-mentioned  persons  the  Urim  is  allowed  to  be  used;  but 
not  for  common  men.  And  the  question,  Wherefrom  is  it  taken 
that  seventy-one  are  needed  to  decide  about  battles  ?  remains. 
Therefore  it  must  be  said,  as  R.  Aha  b.  Bizna  in  the  name  of  R. 
Simeon  the  Pious  said:  A  harp  was  placed  over  the  bed  of 
David,  and  when  midnight  arrived  a  north  wind  used  to  blow 
in  it,  so  that  the  harp  would  play  by  itself  and  awake  David, 
who  used  to  get  up  and  occupy  himself  with  the  Torah  until  the 


36  THE    BABYLONIAN    TALMUD. 

morning  star  arose.  And  thereafter  the  sages  of  Israel  used  to 
enter  to  him,  saying:  Lord  our  king,  thy  nation  Israel  needs 
food.  And  to  his  answer:  Go,  then,  and  make  business  among 
yourselves,  they  answered  him:  A  handful  of  food  can  never 
satisfy  a  lion,  and  a  pit  can  never  be  filled  with  the  earth  taken 
out  from  it.  Whereupon  David  decided :  They  shall  go  to  a 
battle.  Then  they  consulted  Achithophel,  took  also  advice  from 
the  Sanhedrin,  and  asked  the  Urim,  etc. 

R.  Joseph  said:  Whence  do  we  know  from  the  Scripture 
that  such  was  the  custom  ?  From  [I  Chron.  xxvii.  34]:  "  And 
after  Achithophel  (came)  Yehoyada,  the  son  of  Benayahu,  and 
Ebyathar;  and  the  captain  of  the  king's  army  was  Joab.  Achi- 
thophel was  the  counsellor,  as  it  reads  [II  Sam.  xvi.  23]:  "  And 
the  counsel  of  Achithophel,  which  he  counselled  in  those  days." 
Yehoyada  means  the  Sanhedrin,  as  it  is  written  of  his  father 
Benayahu  [I  Chron.  xviii.  17]:  "And  Benayahu,  the  son  of 
Yehoyada,  was  over  the  Kerethites  and  the  Pelethites,"  which 
means  the  Sanhedrin,  to  whom  Yehoyada  his  son  was  the  head 
after  Benayahu.  And  why  was  the  Sanhedrin  named  Kerethites 
and  Pelethites  ?  Because  the  literal  meaning  of  the  two  terms 
in  Hebrew  is  "  cutting"  and  "  wonder"  ;  and  the  Sanhedrin, 
■with  their  decisions,  used  to  cut  off  and  do  wonderful  things. 
"  And  Ebyathar"  means  the  Urim  Vethumim;  and  then  comes 
"  the  captain  of  the  king's  army,  Joab,"  which  means  war.  And 
R.  Itz'hak  b.  Ada,  and  according  to  others  B.  Abudimi,  said 
that  [Ps.  Ivii.  9]  "  Awake,  psaltery  and  harp,  I  will  wake  up  the 
morning  dawn,"  is  a  support  to  R.  Aha  b.  Bizna's  statement. 

*'  For  enlarging  the  city,''  etc.  Whence  is  this  deduced? 
Said  R.  Shimi  b.  Hyya:  From  [Ex.  xxv.  9]:  "In  accordance 
with  all  that  I  show  thee,  the  pattern  of  the  tabernacle,  and  the 
pattern  of  all  instruments  thereof,  even  so  shall  ye  make  it  " — 
which  means,  so  shall  ye  do  in  the  later  generations.  Rabha 
objected  from  the  following:  "  All  the  utensils  which  were  made 
by  Moses,  the  anointment  sanctified  them  ;  however,  the  utensils 
which  were  made  after  him,  the  using  of  them  for  service  con- 
secrated them."  And  why?  Apply,  "  So  shall  ye  do,"  etc., 
to  the  utensils  also;  they  shall  need  anointment  in  the  later 
generations  also  ?  With  this  it  is  different,  as  [Num.  vii.  i] : 
"  And  had  anointed  them,  and  sanctified  them,"  means  them 
with  anointment,  but  not  those  which  should  be  made  in  a  later 
generation.  But  how  is  it  inferred  from  the  passage  that  for  the 
utensils  made  in  the  later  generations  anointing  is  prohibited  ? 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  37 

Said  R.  Papa:  It  is  written  [ibid.  iv.  12]:  "Wherewith  they 
minister  in  the  sanctuary."  We  see,  then,  that  the  passage 
makes  them  sanctified  by  ministering  with  them. 

''Appointing  supreme  councils,''  etc.  This  is  taken  from 
Moses,  who  had  established  the  first  Sanhedrin ;  and  the  person 
of  Moses  is  equalized  to  seventy-one  of  them. 

The  rabbis  taught:  Whence  do  we  know  it  is  a  duty  to 
appoint  judges  ?  From  [Deut.  xvi.  18]:  "  Judges  and  officers," 
etc.  But  whence  do  we  know  that  it  is  a  duty  to  appoint  them 
to  each  tribe  ?  From  [ibid.,  ibid.]:  "  Throughout  thy  tribes." 
(From  this  verse  is  deduced  that  judges  as  well  as  officers  are  to 
be  appointed  to  each  tribe.)  R.  Jehudah  maintains:  It  was  also 
necessary  to  appoint  one  who  should  rule  over  all  the  judges; 
as  this  verse  reads,  "  Shalt  thou  appoint,"  which  means  that  the 
Great  Sanhedrin,  Avho  ruled  all  the  judges  in  the  lower  houses, 
should  be  appointed  by  them.  R.  Simeon  b.  Gamaliel  said:  It 
reads:  "Throughout  thy  tribes,  and  they  shall  judge,"  which 
means,  it  is  a  meritorious  act  to  appoint  judges  to  a  tribe  from 
its  own  people. 

To  co7idcmn  a  misled  town,"  etc.  Whence  is  this  deduced  ? 
From  [ibid.  xvii.  5]:  "  Then  shalt  thou  bring  forth  that  man," 
etc.  An  individual  you  may  bring  to  thy  gates,  but  not  the 
whole  city,  as  said  above  by  R.  Hama  b.  Joseph  (here  mentioned 
Hyya,  instead  of  Hama). 

Town  on  the  boundary,''  etc.  Why  so  ?  Because  it  reads, 
"  From  thy  midst,"  but  not  from  a  boundary. 

"  Nor  three  of  them,"  etc.  Because  it  is  written  [ibid.  xiii. 
13]:  "  One  of  thy  cities."  But  why  two  ?  Because  of  the  word 
"  cities." 

The  rabbis  taught:  One,  but  not  three.  But  perhaps  one, 
and  not  two  ?  Because  it  reads  cities,  two  are  meant.  Hence 
with  the  term  one,  one,  not  three,  is  meant.  Rabh  used  to  say 
at  one  time  that  for  one  court  it  is  not  allowed  to  make  three, 
but  for  two  or  three  courts  it  is  allowed;  and  at  another  time  he 
said  that  it  is  not  allowed  to  do  so,  even  in  several  courts  ?  And 
the  reason  is,  that  Israel  must  not  be  made  bald-headed.  Said 
Resh  Lakish:  This  is  said  only  in  one  country;  but  in  several 
countries,  it  may.  R.  Johanan,  however,  is  of  the  opinion  that 
even  then  it  must  not,  for  the  reason  that  the  land  should  not 
be  bald-headed.  There  is  a  Boraitha  in  accordance  with  R. 
Johanan:  Three  misled  cities  must  not  be  made  in  the  land 
of  Israel;    two,  however,  may — e.g.,  one  in  Judea  and  one  in 


38  THE    BABYLONIAN   TALMUD. 

Galilee;  but  not  two  in  Judea,  nor  two  in  Galilee.  And  if  it 
were  near  to  the  boundary,  even  one  must  not  be  proclaimed 
misled ;  for,  should  it  come  to  the  ears  of  the  heathens, 
they  might  destroy  the  whole  land  of  Israel.  But  why  not 
deduce  it  from  the  passage  which  states  "  from  thy  midst," 
and  not  from  the  boundary  ?  This  is  in  accordance  with  R. 
Simeon,  who  used  to  explain  the  reasons  of  what  is  stated  in 
the  Scriptures. 

The  Great  Sa^ihedrin,"  etc.  What  is  the  reason  of  the 
rabbis,  who  said  that  Moses  was  as  head  of  them  ?  Because  it 
reads  [Num.  xi.  i6J:  "  And  they  shall  stand  there  with  thee," 
which  means,  and  thou  shalt  remain  with  them.  R.  Jehudah, 
who  says  seventy  only,  maintains:  It  was  necessary  for  Moses 
to  remain  with  them,  that  the  Shekinah  should  rest  upon 
them. 

The  rabbis  taught:  It  is  written  [ibid.  xi.  26]:  "  And  there 
remained  two  men  in  the  camp."  According  to  some,  it  means 
that  their  names  remained  in  the  urn.  As,  at  the  time  the  Holy 
One,  blessed  be  He,  said  to  Moses:  Gather  unto  me  seventy 
men  of  the  elders  of  Israel,  he  thought:  How  shall  I  do  it  ? 
Shall  I  appoint  six  of  each  tribe  ?  Then  there  will  be  two  more. 
Or  shall  I  take  five  of  each  ?  Then  there  will  be  ten  less.  Or 
shall  I  appoint  from  two  tribes  five  only,  while  from  the  others 
six  each  ?  Then  will  I  bring  jealousy  among  the  tribes.  So  he 
chose  six  from  each,  and  wrote  on  seventy  tickets  "  Zaqan  " 
(elder),  and  two  he  left  blank;  then  mixed,  and  put  all  of  them 
into  the  urn.  Then  he  said :  Go,  each,  and  take  your  ticket. 
To  those  who  drew"  elder,"  he  said:  You  are  already  sanctified 
by  Heaven.  But  those  who  drew  the  blanks  had  no  claim,  as 
such  was  their  lot. 

Similar  was  the  case  from  [ibid.  iii.  47]:  "  Thou  shalt  take 
five  shekels  apiece  for  the  poll."  And  to  this  Moses  also  said: 
How  shall  I  do  it  ?  If  I  should  say  to  one,  "  Give  the  shekels," 
he  may  answer,  "  The  Levite  has  already  redeemed  me." 
Therefore  he  wrote  on  twenty-two  thousand  tickets  "  Levite  "  ; 
and  on  two  hundred  and  seventy-three  he  wrote  "  five  shekels," 
mixed  them,  put  them  in  the  urn,  and  told  the  people:  Each 
shall  draw  his  ticket.  To  the  one  who  drew  "  Levite  "  he  said : 
You  are  free,  as  the  Levite  has  redeemed  you.  And  he  who 
drew  five  shekels  was  told  to  pay  the  amount  and  go. 

R.  Simeon,  however,  said  :  Not  their  names  remained  in  the 
urn,  but  themselves  remained  in  the  camp  in  doubt,  saying:  We 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  39 

are  not  worthy  of  such  a  high  appointment.  And  the  Holy 
One,  blessed  be  He,  said:  Because  ye  were  modest,  I  will  in- 
crease your  grace.  And  what  grace  was  increased  to  them  ? 
All  the  seventy  had  prophesied  once,  and  ceased ;  but  these  two 
did  not  cease  to  prophesy.  And  what  was  their  prophecy  ? 
They  said  :  Moses  shall  die,  and  Joshua  shall  bring  Israel  to  his 
land.  Aba  Hanin,  however,  said  in  the  name  of  R.  Elazar: 
They  prophesied  about  the  quail,  saying,  "  Come  up,  quail. 
Come  up,  quail."  And  R.  Na'hman  said:  About  Gog  and 
Magog  they  prophesied,  as  it  is  written  [Ezek.  xxxviii.  17] : 
"  Then  hath  said  the  Lord  Eternal:  Art  thou  (not)  he  of  whom 
I  have  spoken  in  ancient  days  through  means  of  my  servants  the 
prophets  of  Israel,  who  prophesied  in  those  days  {Shanini)  years, 
that  I  would  bring  thee  against  them  ?"  Do  not  read  Shanini, 
but  Shnaim,  which  means  two.  And  who  were  the  two  who  had 
prophesied  at  one  period,  with  one  and  the  same  prophecy  ? 
Eldad  and  Medad. 

It  is  correct  in  respect  to  him  who  said  above  that  their 
prophecy  was,  "  Moses  shall  die,"  what  is  written  [Num.  xi. 
28]:  "  My  lord  Moses,  forbid  them."  But  in  respect  to  them 
who  said  they  prophesied  about  other  things,  why,  then,  should 
they  be  forbidden  ?  Because  it  was  not  seemly  for  them  thus 
to  prophesy  in  the  presence  of  Moses.  What  is  meant  by  the 
words,  "forbid  them"?  He  meant  to  say:  Appoint  them, 
they  shall  occupy  themselves  with  the  needs  of  the  congregation, 
and  they  will  be  destroyed  by  themselves. 

Whence  do  we  know  that  three  more  are  needed,  as,  after 
all,  sentence  of  guilt  by  a  majority  of  two  cannot  take  place;  as, 
if  eleven  defend  and  twelve  accuse,  then  there  is  only  a  majority 
of  one;  and  if  ten  defend  and  thirteen  accuse,  there  is  a  majority 
of  three  ?  Said  R.  Abuhu  :  Such  a  case  can  be  only  when  there 
is  a  necessity  to  add  more  judges  according  to  all.  {I.e.,  in  case 
eleven  accuse  and  the  same  number  defend,  and  one  of  them 
says:  I  am  in  doubt.  And  in  such  a  case  all  agree  that  judges 
must  be  added,  as  the  one  who  is  in  doubt  cannot  be  counted ; 
and  then  two  more  are  to  be  added.  And  if  the  two  who  were 
added  also  accuse,  there  is  a  majority  of  two.)  And  siich  also 
can  be  found  in  the  Great  Sanhedrin,  in  accordance  with  R. 
Jehudah,  who  said:  There  was  an  even  number  of  seventy. 
R.  Abuhu  says  again:  In  case  more  judges  are  to  be  added,  an 
even  number  may  be  made  in  the  Small  Sanhedrin  also.  Is  this 
not  self-evident  ?     Lest  one  say  that  the  one  who  says  he  is  in 


40  THE    BABYLONIAN    TALMUD. 

doubt  is  counted,  and  if  thereafter  he  gives  a  reason  for  his 
decision  after  deliberating  he  may  be  listened  to,  he  comes  to 
teach  us  that  as  from  the  time  he  is  in  doubt  he  is  not  to 
be  counted  at  all,  so  after  the  deliberation  he  may  not  be  lis- 
tened to. 

R.  Kahana  said:  If  all  the  persons  of  the  Sanhedrin  are 
accusing,  the  defendant  becomes  free.  Why  so  ?  Because  there 
is  a  tradition  that  such  a  trial  must  be  postponed  for  one  night, 
as  perhaps  some  defence  maybe  found  for  him;  but  if  all  accuse 
him,  it  is  not  to  be  supposed  that  some  will  find  any  defence  for 
him  over  night,  and  therefore  they  are  no  longer  competent  to 
decide  in  his  suit. 

R.  Johanan  said:  The  persons  who  are  chosen  to  be  mem- 
bers of  the  Sanhedrin  must  be  tall,  men  of  wisdom,  of  good 
appearance,  and  of  a  considerable  age ;  and,  also,  they  should 
understand  something  in  cases  of  witchcraft ;  and  they  must  also 
know  seventy  languages,  so  that  they  shall  not  need  to  hear  a 
case  through  an  interpreter.  R.  Jehudah  in  the  name  of  Rabh 
said :  In  a  city  in  which  there  are  not  to  be  found  two  persons 
who  can  speak  seventy  languages,  and  one  who  can  understand 
them  although  he  cannot  speak,  Sanhedrin  must  not  be  estab- 
lished. In  the  city  of  Bethar  were  three;  and  in  the  city  of 
Yamiam  were  four,  namely:  R.  Eliezer,  R.  Jehoshua,  R.  Aqiba, 
and  Simeon  of  Tehmon  their  disciple,  who  was  not  of  age  to 
become  a  rabbi. 

An  objection  was  raised  from  the  following:  A  Sanhedrin  in 
which  three  of  them  could  speak  seventy  languages  was  con- 
sidered a  wise  one ;  and  if  four,  it  was  considered  the  highest 
one.  We  see,  then,  that  three  who  could  speak  were  needed  ? 
Rabh  holds  with  the  Tana  of  the  following  Boraitha:  If  two, 
it  is  a  wise  one ;  and  if  three,  it  is  the  highest  one. 

There  is  a  rule  that,  where  there  is  to  be  found  throughout 
the  Talmud  the  expression  "  the  man  who  learned  in  the  pres- 
ence of  the  sages,"  Levi  before  Rabbi  is  meant;  and  where  the 
expression,  "  discussed  before  the  sages,"  Simeon  b.  Azi,  Simeon 
b.  Zoma,  Hanan  the  Egyptian,  and  Hayanya  b.  Hkhinai  are 
meant.  R.  Na'hman  b.  Itz'hak  taught  five  persons — the  four 
mentioned  above,  and  the  fifth  was  Simeon  of  Tehmon.  Where 
it  is  mentioned,  "  our  Masters  in  Babylon,"  Rabh  and  Samuel 
are  meant;  "  our  Masters  in  Palestine,"  R.  Abbi  is  meant;  "  the 
judges  of  the  Exile,"  Kama  is  meant;  "  the  judges  of  Pales- 
tine," R.  Ami  and  R.  Assi;  "  the  judges  of  Pumbeditha,"  R. 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).  41 

Papab.  Samuel;  "the  judges  of  Nahardea,"  R.  Ada  b.  Minumi; 
"  the  elders  of  Sura,"  R.  Huna  and  R.  Hisda;  "  the  elders  of 
Pumbeditha,"  R.  Jehudah  and  R.  Eina;  "  the  geniuses  of  Pum- 
beditha,"  Eiphah  and  Abimi  sons  of  Rabha;  "  the  Amoraim  of 
Pumbeditha,"  Rabba  and  R.  Joseph;  "the  Amoraim  of  Na- 
hardea," R.  Hama.  If  it  is  said  "the  Nhardlaien  taught," 
Rami  b.  Berokha  is  meant.  But  was  it  not  said  by  Huna  him- 
self: "  It  was  said  in  the  college  "  ?  Therefore  it  must  be  said 
that  "  Hamnuna  "  is  meant.  "It  was  said  in  Palestine,"  R. 
Jeremiah  is  meant;  "a  message  was  sent  from  Palestine," 
R.  Jose  b.  Hanina  is  meant.  And  where  it  is  said,  "  it  was 
ridiculed  in  Palestine,"  R.  Elazar  is  meant.  But  do  we  not  find 
a  message  was  sent  from  Palestine:  According  to  R.  Jose  b. 
Hanina  it  is  so  and  so  ?  Hence  R.  Jose  b.  Hanina  cannot  be 
meant  in  the  expression,  "  there  is  a  message  from  Palestine  "  ? 
Therefore  it  must  be  reversed.  Where  it  is  said,  "  a  message 
from  Palestine,"  R.  Elazar  is  meant;  and  "  it  was  ridiculed  in 
Palestine,"  R.  Jose  b.  Hanina  is  meant. 

' '  How  many  shall  a  city  .  .  .  one  hundred  a?id  twenty, ' ' 
etc.  What  is  the  reason  of  that  number  ?  Twenty-three  of  the 
Small  Sanhedrin,  and  three  rows  of  twenty-three  each  (hearers), 
make  ninety-two;  and  ten  idle  men,  who  must  always  be  in  the 
houses  of  prayer  and  learning,  make  one  hundred  and  two;  and 
two  scribes,  two  sextons,  two  parties  for  defendant  and  plaintiff, 
two  witnesses,  and  two  men  who  may  be  able  to  prove  the  wit- 
nesses collusive,  and  still  two  more  who  could  prove  the  last 
ones  collusive — hence  in  the  total  there  are  one  hundred  and 
fourteen.  There  is  a  Boraitha  that  in  a  city  in  which  the  follow- 
ing ten  things  do  not  exist,  it  is  not  advisable  for  a  scholar  to 
reside,  and  they  are :  Five  persons  to  execute  what  the  court 
decides;  a  treasury  of  charity  (which  is  collected  by  two  and 
distributed  by  three);  a  prayer-house,  a  bath-house,  lavatories,  a 
physician,  a  barber,  a  scribe,  and  a  teacher  for  children.  And 
according  to  others  it  was  said  in  the  name  of  R.  Aqiba  :  In 
the  city  should  be  several  kinds  of  fruit,  as  the  consuming  of 
fruit  enlightens  the  eyes. 

"  R.  Nehemiah,'"  etc.  There  is  a  Boraitha:  Rabbi  said: 
Two  hundred  and  seventy-seven.  And  there  is  another:  Rabbi 
said:  Two  hundred  and  seventy-eight.  And  there  is  no  contra- 
diction, as  one  Boraitha  is  in  accordance  with  R.  Jehudah,  who 
needs  only  seventy  for  the  Great  Sanhedrin. 

The  rabbis  taught:  It  is  written  [Ex.  xviii.  21]  :  "  And  place 


42  THE    BABYLONIAN    TALMUD. 

these  over  them,  as  rulers  of  thousands,  rulers  of  hundreds, 
rulers  of  fifties,  and  rulers  of  tens."  Rulers  of  thousands  were 
six  hundred ;  rulers  of  hundreds  were  six  thousand ;  rulers  of 
fifties,  twelve  thousand;  and  rulers  of  tens,  sixty  thousand. 
Hence  the  total  number  of  the  officers  in  Israel  were  seventy- 
eight  thousand  and  six  hundred. 


CHAPTER   II. 

RULES  AND  REGULATIONS  CONCERNING  THE  HIGH-PRIEST:  IF  HE  MAY 
JUDGE  AND  BE  JUDGED,  BE  A  WITNESS  AND  BE  WITNESSED  AGAINST; 
THE  LAWS  REGARDING  A  DEATH  OCCURRING  IN  HIS  FAMILY  AND 
THE  CUSTOM  OF  THE  CONDOLENCE.  THE  SAME  RULES  CONCERNING 
A  KING.  REGULATIONS  AS  TO  WHAT  A  KING  MAY  AND  MAY  NOT 
ALLOW  himself:  HOW  MANY  WIVES  AND  HOW  MANY  STABLES 
FOR  HORSES  HE  MAY  HAVE;  HOW  HE  MUST  BE  RESPECTED  AND 
FEARED    BY    HIS   PEOPLE,    ETC. 

MISHNA  /. :  The  high-priest  may  judge  and  may  be  judged ; 
he  may  be  a  witness  and  may  be  witnessed  against;  he  may  per- 
form the  ceremony  of  Halitzah,  and  the  same  may  be  done  to  his 
wife  if  he  dies  childless,  or  his  brother  may  marry  his  wife  in 
such  a  case.  He,  however,  must  not  marry  his  brother's  wife 
when  his  brother  dies  childless — because  it  is  forbidden  for  a 
high-priest  to  marry  a  widow.  If  a  death  occurs  in  his  family, 
he  must  not  accompany  the  coffin ;  but  if  the  coffin  with  those 
accompanying  it  are  no  longer  visible  in  the  street,  he  goes  after 
them.  And  so  with  other  streets — when  they  are  not  visible, 
he  may  enter  the  street,  etc. ;  and  in  such  manner  he  may  follow 
the  coffin  to  the  gate  of  the  city.  So  is  the  decree  of  R.  Meir. 
R.  Jehudah,  however,  maintains:  He  must  not  leave  the  Temple 
at  all,  as  it  reads  [Lev.  xxi.  12]:  "  And  out  of  the  sanctuary 
shall  he  not  go." 

When  he,  the  high-priest,  condoled  with  others,  it  was  usual 
that  the  people  went  one  after  another,  and  the  superintendent 
of  the  priests  would  place  him  between  himself  and  the  people 
(so  that  he  could  say  a  word  of  condolence  to  every  one  of 
them);  but  when  he  was  being  condoled  with,  the  people  used 
to  say  to  him:  We  shall  be  your  atonement  (2>.,  to  us  shall 
occur  what  ought  to  occur  to  you),  and  his  answer  was:  You 
shall  be  blessed  by  Heaven.  And  at  the  condoling  meal,  all  the 
people  were  placed  on  the  floor,  but  he  sat  on  a  chair. 

A  king  must  not  judge,  and  he  is  not  judged;  he  must  not 
be  a  witness,  nor  be  witnessed  against.  The  ceremony  of  Halit- 
zah does  not  exist  for  him,  nor  for  his  wife.     He  does  not  marry 

43 


44  THE    BABYLONIAN    TALMUD. 

his  childless  brother's  wife,  and  his  brother  must  not  marry  his 
wife.  R.  Jehudah,  however,  maintains:  If  he  was  willing  to 
give  Halitzah  or  to  marry  his  brother's  wife,  he  may  be  remem- 
bered among  the  good.  And  he  was  told:  Even  if  he  is  willing, 
he  must  not  be  listened  to. 

His  widow  must  not  remarry.  R.  Jehudah  said:  A  king 
may  marry  the  widow  of  a  king,  as  so  we  found  with  David,  who 
married  the  widow  of  Saul;  as  it  reads  [II  Sam.  xii.  8]:  "  And 
I  gave  unto  thee  the  house  of  thy  master,  and  (put)  the  wives 
of  thy  master  into  thy  bosom." 

GEMARA:  Is  it  not  self-evident  that  the  high-priest  may 
judge  ?  It  was  stated,  because  it  was  necessary  to  say  that  he 
may  be  judged.  But  this  is  also  self-evident;  as  if  it  were  not 
permitted  to  judge  him,  how  could  he  judge  ?  Is  it  not  written 
[Zeph.  ii.  i]:"  Gather  yourselves,"  which  Resh  Lakish  explained 
in  Middle  Gate  (p.  287):  "  Correct  yourself  first,  and  then  cor- 
rect others  "  ?  Therefore  we  must  say,  because  in  the  latter  part 
it  was  necessary  to  teach  that  a  king  must  not  judge  or  be  judged, 
it  teaches  also  that  the  high-priest  may  judge  and  be  judged. 
And  if  you  wish,  it  may  be  said  that  it  came  to  teach  us  what 
is  stated  in  the  following  Boraitha:  A  high-priest  who  killed  a 
person — if  intentionally,  he  may  be  killed ;  and  if  unintention- 
ally, he  may  be  sent  into  exile :  he  transgresses  a  positive  and 
a  negative  commandment,  and  is  also,  concerning  other  laws, 
considered  as  a  commoner  in  every  respect. 

Intentionally — he  may  be  killed.  Is  this  not  self-evident  ? 
It  was  necessary  to  state,  if  unintentionally,  he  might  be  sent 
into  exile.  But  is  this  also  not  self-evident  ?  Nay!  One  may 
consider,  because  it  reads  [Num.  xxxv.  28]:  "  He  shall  remain 
until  the  death  of  the  high-priest,"  that  he  who  has  a  remedy 
to  return  to  his  land  by  the  death  of  the  high-priest  shall  be  sent 
into  exile;  but  he  who  has  no  such  remedy  should  not;  and 
there  is  a  Mishna:  He  who  kills  a  high-priest,  or  a  high-priest 
who  has  killed  a  person,  is  not  returned  from  the  city  of  refuge 
for  everlasting,  and  therefore  he  should  not  be  exiled — it  comes 
to  teach  us  that  it  is  not  so.  But  perhaps  it  should  be  so  ? 
There  is  another  verse  [Deut.  xix.  3]:  "  Every  man-slayer," 
which  includes  a  high-priest. 

The  Boraitha  states:  He  transgresses  a  positive  and  negative 
commandment.  Must  he,  then,  transgress  ?  It  means  to  say 
that  if  it  happened  he  should  transgress  a  positive  and  a  negative 
commandment,  he  is  considered  a  commoner  in  every  respect. 


TRACT   SANHEDRIN    (SUPREME    CCUNCIL).  45 

"  Be  a  witness,  and  wiUiessed  against,''  etc.  May  he  be  a 
witness?  Have  we  not  learned  in  the  following  Boraitha:  It 
reads  [Deut.  xxii.  i] :  "And  withdraw  thyself."  There  are 
cases  from  which  one  may  withdraw  himself,  and  there  are  others 
from  which  he  may  not.  How  so  ?  E.g.,  a  priest  who  sees  a 
lost  thing  lying  in  a  cemetery  is  not  obliged  to  pick  it  up  for  the 
purpose  of  returning  it;  or  if  there  were  an  old,  respectable  man, 
and  it  was  not  in  accordance  with  his  honor  to  bother  with  such 
a  thing,  or  even  if  one's  time  is  more  valuable  than  the  value  of 
the  lost  thing,  he  may  withdraw  himself.  Hence  it  is  self- 
evident  that  it  is  not  fit  for  a  high-priest  to  go  and  witness. 
Why,  then,  should  he  be  obliged  ?  Said  R.  Joseph  :  He  may  be 
a  witness  in  a  case  that  concerns  the  king.  But  does  not  our 
Mishna  state  "  that  a  king  must  not  be  a  witness,  and  not  be 
witnessed  against  "  ?  Therefore  said  R.  Zera :  He  may  be  witness 
in  the  case  of  a  prince,  the  son  of  the  king.  A  prince — is  he  not 
considered  a  commoner  in  all  respects  concerning  the  law  ?  Say 
he  may  witness  before  the  king.  But  have  we  not  learned  that 
the  king  must  not  be  a  member  of  the  Sanhedrin ;  and  also  that 
both  the  king  and  the  high-priest  must  not  take  part  in  the  dis- 
cussion about  a  leap  year  ?  For  the  honor  of  the  high-priest, 
the  king  comes  and  remains  with  the  Sanhedrin  until  the  testify- 
ing of  the  high-priest  ends,  and  then  both  depart;  and  the 
Sanhedrin  themselves  deliberate  and  decide  the  matter. 

The  text  states  that  a  king  must  not  be  a  member  of  the 
Sanhedrin,  nor  a  king  and  a  high-priest  engage  in  the  discussion 
about  a  leap  year.  The  first  is  deduced  from  [Ex.  xxiii.  2].* 
And  the  second — a  king — because  he  would  not  like  to  add  a 
month  to  the  year,  because  of  the  increase  of  the  wages  of  the 
military;  and  a  high-priest,  because  of  the  cold  {i.e.,  it  is  pre- 
scribed by  the  Scriptures  to  take  during  the  Day  of  Atonement 
legal  baths  five  times  in  cold  water,  and  by  adding  a  month,  the 
month  of  Tishri  would  fall  when  in  a  usual  year  is  the  month  of 
Cheshvi,  which  is  much  colder  than  Tishri). 

Said  R.  Papa:  Infer  from  this  that  the  seasons  of  the  year 
follow  the  usual  months,  and  not  according  to  the  intercalary 
month.     Is  that  so  ?     We  know  that  it  happened,  three  pasturers 

*  How  it  is  deduced  from  this  verse  it  is  impossible  to  express  in  any  living  lan- 
guage. Even  in  the  Hebrew  we  have  to  make  from  the  word  Rebh — literally. 
"  quarrel  " — the  word  Rab— literally,  "great,"  and  to  intepret  the  passage  in  another 
fashion  altogether.  It  would  therefore  be  of  no  use  to  insert  the  verse  as  it  is 
usually  translated. 


46  THE    BABYLONIAN    TALMUD. 

were  standing  and  conversing  in  the  presence  of  rabbis  thus :  One 
of  them  said:  If  there  were  enough  heat  so  that  the  wheat  which 
was  sown  in  the  beginning  of  the  month,  and  the  barley  which 
was  sown  recently,  should  sprout,  the  month  could  be  named 
Adar;  and  if  not,  it  remains  Shbat.  The  second  said:  If  in  the 
morning  there  is  such  a  cold  that  the  ox  trembles  from  it,  and 
in  the  middle  of  the  day  he  should  hide  himself  in  the  shadow  of 
a  fig  tree,  the  month  maybe  considered  Adar;  and  if  not,  it 
remains  Shbat.  And  the  third  said:  If  the  winter  has  already 
lost  its  strength,  and  the  air  you  blow  from  your  mouth  moder- 
ates the  cold  brought  by  the  east  wind,  it  is  Adar;  and  if  not, 
it  remains  Shbat.  And  as  that  year  was  not  so  in  any  of  these 
cases,  the  rabbis  intercalated  it.  Hence  we  see  that  the  inter- 
calary comes  because  of  the  cold,  and  not  vice  versa? 

How  can  you  conceive  that  the  rabbis  had  relied  upon  the 
pasturers  to  intercalate  a  year  ?  They  relied  upon  their  own 
reckoning,  and  the  gossip  of  the  pasturers  was  considered  as  a 
support  only. 

''He  may  perform  the  ceremony  of  Halitsah,"  etc.  The 
Mishna  makes  no  difference  if  the  widow  was  from  betrothal  or 
from  marriage.  And  this  can  be  correct  only  with  a  marriage, 
as  there  is  a  positive  commandment  that  a  high-priest  must 
marry  a  virgin,  and  a  negative  commandment  that  he  must  not 
marry  a  widow;  while  to  marry  the  wife  of  his  childless  brother 
is  a  positive  commandment  only,  which  cannot  invalidate  a  posi- 
tive and  a  negative  commandment.  But  if  the  widow  was  from 
betrothal,  she  is  still  a  virgin ;  there  remains  only  one  negative 
commandment,  he  shall  not  take  a  widow.  And  there  is  a  rule 
that  a  positive  commandment  invalidates  a  negative  command- 
ment ?  The  positive  commandment  applies  only  to  the  first 
interco\irse,  but  not  thereafter,  upon  which  the  negative  com- 
mandments rest.  And  if  the  first  were  allowed,  he  would  come 
to  commit  a  transgression  thereafter,  and  therefore  it  is  pro- 
hibited.    And  so  also  a  Boraitha  states. 

"  If  death  happens,"  etc.  The  rabbis  taught:  "  He  shall  not 
leave  the  sanctuary"  means  he  shall  not  go  with  them,  but  he 
may  go  out  after  them.  How  so  ?  "  When  they  are  not  visible 
in  the  street,  he  may  appear,"  etc. 

To  the  gate  of  the  city,"  etc.  Is  not  R.  Jehudah  correct 
with  his  statement  ?  R.  Meir  may  answer:  According  to  your 
theory,  he  must  not  leave  the  Temple  for  home  ?  You  must 
then  explain  this  passage,  that  it  means  that  he  must  not  go  out 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  47 

from  his  sanctuary;  and  while  he  goes  after  them,  when  they  are 
no  longer  visible,  he  .vill  not  come  in  contact  with  the  corpse. 
R.  Jehudah,  however,  fears  that  because  of  his  sorrow  it  may 
happen  that  when  he  shall  accompany  them  he  will  come  in 
contact  with  the  corpse,  and  violate  his  sanctity. 

"  Co7idole  with  others,"  etc.  The  rabbis  taught:  When  he 
goes  in  the  row  to  condole  with  others,  his  vice  and  the  ex-high- 
priest  are  placed  at  his  right,  and  the  head  of  the  priest's  family 
at  the  mourners' ;  and  all  other  people  are  placed  at  his  left. 
But  when  he  stands  in  the  row  to  be  condoled  with  by  others, 
the  vice  only  is  placed  at  his  right,  but  not  the  ex-high-priest, 
as  he  may  be  dejected,  thinking  that  the  ex-priest  sees  a  revenge 
in  him. 

Said  R.  Papa:  From  the  Boraitha  three  things  are  to  be  in- 
ferred: («)  That  the  vice  and  superintendent  are  identical;  {b) 
that  the  mourners  stand  and  the  people  pass  by;  and  (^)  that 
the  mourners  are  placed  at  the  left  side  of  the  condolers. 

The  rabbis  taught :  Formerly  the  custom  was  for  the  mourners 
to  stand  and  the  people  to  pass  by;  but  there  were  two  families 
in  Jerusalem  who  had  quarrelled,  one  saying:  I  must  pass  first, 
according  to  my  dignity;  and  the  other  said:  I  must  pass  first: 
Therefore  it  was  enacted  that  the  people  should  stand  and  the 
mourners  pass.  Said  Rami  b.  Aba:  R.  Jose  reestablished  the 
old  custom  that  the  mourners  shall  stand  and  people  pass,  in 
the  city  of  Sephorias.  And  he  said  also:  The  same  enacted 
in  the  same  city  that  a  woman  should  not  go  into  the  street  with 
her  child  following  her,  but  that  she  should  follow  the  child, 
because  of  an  accident  that  happened.  (Rashi  explained:  It 
happened  that  immoral  men  had  stolen  a  child  who  was  following 
its  mother,  and  put  it  in  a  house;  and  while  she  was  crying  and 
searching  for  it,  they  said  to  her:  Come  with  us  and  we  will 
show  it  to  you.  And  while  doing  so,  she  was  assaulted.)  He 
also  said :  The  same  enacted  in  Sephorias  that  women  should 
talk  to  each  other  while  they  were  at  their  toilet,  for  the  purpose 
that  men  should  not  intrude. 

R.  Menashia  b.  Evath  said  :  I  questioned  R.  Jashiah  the 
Great  in  the  cemetery  of  Huzl,  and  he  told  me  that  a  row  is  not 
less  than  ten  persons,  not  counting  the  mourners,  who  must 
not  be  among  them ;  and  there  is  no  difference  if  the  mourners 
stand  and  the  people  pass,  or  vice  versa. 

''Being  condoled  with,'"  etc.  The  schoolmen  questioned: 
What   did  he  say  when   he  condoled  with  others  ?     And  they 


48  THE    BABYLONIAN   TALMUD. 

were  answered  from  a  Boraitha,  which  states:  He  used  to  say: 
Be  comforted. 

"  A  king  must  not  judge,''  etc.  Said  R.  Joseph:  This  is  con- 
cerning the  kings  of  Israel;  but  the  kings  of  the  house  of  David 
are  judged  and  judge.  As  it  is  written  [Jer.  xxi.  12]  :  "  O  house 
of  David,  thus  said  the  Lord:  Exercise  justice  on  every  morn- 
ing." We  see  that  they  did  judge;  and  if  they  were  not  to  be 
judged,  how  could  they  judge  ? — as  is  said  above  by  Resh  Lakish. 
And  what  is  the  reason  it  is  prohibited  to  the  kings  of  Israel  ? 
Because  an  unfortunate  thing  happened  as  follows:  The  slave 
of  King  Janai  murdered  a  person;  and  Simeon  b.  Cheta'h  said 
to  the  sages :  Notwithstanding  that  he  is  the  slave  of  the  king, 
he  must  be  tried.  They  sent  to  the  king:  Your  slave  has  killed 
a  man.  And  Janai  sent  his  slave  to  them  to  be  tried.  How- 
ever, they  sent  to  him :  You  also  must  appear  before  the  court. 
As  it  is  written  [Ex.  xxi.  29]  :  "  Warning  has  been  given  to  its 
owner" — which  means  the  owner  of  the  ox  must  appear  at  the 
time  the  ox  is  tried.  He  then  came  and  took  a  seat.  Said 
Simeon  b.  Cheta'h:  King  Janai,  arise,  so  that  the  witnesses  shall 
testify  while  you  stand;  yet  not  for  us  do  you  rise,  but  for  Him 
who  said  a  word,  and  the  world  was  created.  As  it  reads  [Deut. 
xix.  17]:  "Stand  before  the  Lord."  And  the  king  answered: 
It  must  not  be  as  you  say,  but  as  the  majority  of  your  colleagues 
shall  decide.  Simeon  then  turned  to  his  right,  but  his  colleagues 
cast  their  eyes  upon  the  floor  without  any  answer;  and  the  same 
did  his  colleagues  at  his  left.  Simeon  then  exclaimed:  You  are 
all  troubled  in  mind  (disconcerted) !  May  the  One  who  rules 
minds  take  revenge  upon  you.  Gabriel  came  then  and  smote 
them  to  the  floor,  that  they  died.  And  at  that  time  it  was 
enacted  that  a  king  should  neither  judge  nor  be  judged,  neither 
be  a  witness  nor  be  witnessed  against. 

''  If  he  was  willing  to  give  Halitzah,"'  etc.  This  is  not  so  ? 
Did  not  R.  Ashi  say:  Even  he  who  holds  that  if  a  prince  has 
relinquished  his  honor  it  holds  good,  agrees  that  if  a  king  does 
so  his  honor  is  not  relinquished.  As  it  is  written  [Deut.  xvii. 
15]:  "  Set  a  king  over  you  " — which  means,  that  respect  (fear) 
for  the  king  should  always  be  before  thy  eyes  {i.e.,  and  in  the 
ceremony  of  Halitzah  the  woman  takes  off  his  shoe,  and  spits 
before  him,  which  is  a  disgrace  for  a  king,  and  must  not  be  done 
even  if  he  is  willing)  ?  R.  Jehudah,  however,  maintains:  Where 
there  is  a  biblical  commandment,  it  is  different. 

"  His  widow  must  not  remarry,''  etc.     There  is  a  Boraitha: 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  49 

The  sages  answered  R.  Jehudah:  The  verse  you  refer  to  means, 
the  woman  who  was  ordained  to  him  by  the  king,  Saul;  and  they 
were  Merab  and  Michal,  his  daughters. 

The  disciples  of  R.  Jose  questioned  their  master:  How  could 
David  marry  two  sisters  while  they  were  both  living  ?  And  he 
answered  them:  He  married  Michal  after  the  death  of  Merab. 
And  R.  Jose  said  so  in  accordance  with  his  theory  in  the  follow- 
ing Boraitha,  which  states:  He,  R.  Jose,  used  to  lecture  about 
passages  in  the  Scriptures  which  were  obscure,  namely:  It  reads 
[H  Sam.  xxi.  8J:  "  And  the  king  took  the  two  sons  of  Rizpah, 
the  daughter  of  Ayah,  whom  she  had  born  unto  Saul,  Armoni 
and  Mephibosheth;  and  the  five  sons  of  Michal,  the  daughter 
of  Saul,  whom  she  had  borne*  to  Adriel,  the  son  of  Barzillai  the 
Meholathite."  But  was  Michal  given  to  Adriel  ?  Was  she  not 
given  to  Palti  b.  Layish  ?  It  reads  [I  Sam.  xxv,  44]:  "But 
Saul  had  given  Michal  his  daughter,  David's  wife,  to  Palti,  the 
son  of  Layish."  Hence  the  Scripture  equalizes  the  betrothing 
of  Merab  to  Adriel  to  the  betrothing  of  Michal  to  Palti  b. 
Layish;  as  the  betrothing  of  Michal  to  Palti  was  a  sin  (for  she 
was  already  the  wife  of  David,  and  according  to  the  law  a  second 
betrothing  is  not  considered  at  all),  so  also  was  the  betrothing 
of  Merab  to  Adriel  a  sin  (for  she  was  already  David's  wife).  R. 
Jesh  b.  Karha,  however,  maintains:  The  betrothal  of  Merab  to 
David  was  by  an  error.  As  it  is  written  [II  Sam.  iii.  14]  :  "  Give 
up  to  me  my  wife  Michal,  whom  I  espoused,"  etc.  But  what 
would  he  say  to  that  passage  which  reads,  "  the  five  sons  of 
Michal,  the  daughter  of  Saul  "  ?  He  might  say:  Did,  then,  Mi- 
chal bear  them  ?  Was  it  not  Merab  who  bore  them,  whereas 
Michal  merely  brought  them  up  ?  But  they  bore  the  name  of 
Michal,  because  the  Scripture  considers  the  one  who  brings  up 
an  orphan  as  if  it  were  born  to  him. 

R.  Haninasays:  This  is  inferred  from  [Ruth,  iv.  17]:  "  There 
hath  been  a  son  born  unto  Naomi,"  etc.  Did,  then,  Naomi 
bear  him  ?  Was  it  not,  in  fact,  Ruth  who  bore  him  ?  There- 
fore we  must  say  that,  though  Ruth  bore  him,  he  was  neverthe- 
less named  after  Naomi,  because  she  brought  him  up.  R. 
Eleaser  said:  From  [Ps.  Ixxvii.  16]:  "  The  sons  of  Jacob  and 
Joseph.     Selah."     Were  they,  then,  born  to  Joseph,  and  not  to 


*  Leeser  translates  "  brought  up,"  according  to  the  sense.  The  term  in  the 
Bible,  however,  is  the  same  as  in  the  iirst  part  of  this  verse  ;  therefore  the  question 
in  the  text. 

4 


50  THE    BABYLONIAN    TALMUD. 

Jacob  ?  They  were  born  to  Jacob,  but  Joseph  fed  them,  and 
therefore  they  were  named  after  him. 

R.  Samuel  b.  Nahmeni  in  the  name  of  R.  Jonathan  said:  He 
who  teaches  the  Torah  to  the  son  of  his  neighbor,  the  Scripture 
considers  him  as  if  he  were  born  to  him.  As  it  is  written  [Num. 
iii.  i] :  "  And  these  are  the  generations  of  Aaron  and  Moses  "  ; 
and  the  following  verse  reads:  "  And  these  are  the  names  of  the 
sons  of  Aaron. "  It  is  only  to  say  that  they  were  born  to  Aaron 
and  Moses  taught  them,  and  therefore  they  were  named  after  him. 

It  is  written  [Is.  xxix.  22]:  "Therefore  thus  hath  said  the 
Lord  unto  the  house  of  Jacob,  he  who  hath  redeemed  Abraham." 
Where  do  we  find  that  Jacob  redeemed  Abraham  ?  Said  R. 
Jehudah :  He  redeemed  him  from  the  affliction  of  bringing  up 
his  children.  {I.e.,  Abraham  was  promised  by  the  Lord  that  He 
would  multiply  his  children,  and  so  the  affliction  of  bringing 
them  up  was  to  lie  upon  Abraham ;  but,  in  fact,  it  was  Jacob 
who  was  afflicted  by  bringing  them  up. — Rashi.)  And  this  is 
what  is  written  [ibid.]:  "  Not  now  shall  Jacob  be  ashamed,  and 
not  now  shall  his  face  be  made  pale  " — which  means,  he  shall  not 
be  ashamed  of  his  father  and  his  face  shall  not  become  pale 
because  of  his  grandfather. 

In  the  Scripture  there  is  written  in  some  places  "  Palti,"  in 
other  places  "  Paltiel."  Said  R.  Johanan  :  His  name  was  Palti; 
and  why  was  he  named  Palti-El  ?  "  For  God  saved  him  from 
sin  "  {i.e.,  "  Polat  "  in  Hebrew  means  "  to  break  through  "  and 
"  El"  means  God,  and  according  to  tradition  Palti  did  not  live 
with  Michal  [although  he  slept  with  her  in  one  bed],  because  of 
her  betrothal  to  David).  Said  R.  Johanan:  The  strength 
of  Joseph  was  moderation  on  the  part  of  Boas,  and  the  strength 
of  the  latter  was  moderation  on  the  part  of  Palti,  "  The 
strength  of  Joseph  was  moderation  on  the  part  of  Boas  " — as  it 
is  written  [Ruth,  iii.  8]:  "And  it  came  to  pass  at  midnight, 
that  the  man  became  terrified,"  etc.  And  Rabh  said:  His 
body  became  as  soft  as  (boiled)  turnip  heads.  "And  the 
strength  of  the  latter  was  the  moderation  of  Palti" — as  with 
Boas  it  occurred  only  on  one  night,  and  with  Palti  it  was  con- 
tinually. The  same  said  again:  It  is  written  [Prov.  xxxi.  29]: 
Many  daughters  have  done  virtuously,  but  thou  excellest  them 
all."  "Many  daughters"  means  Joseph  and  Boas.  "That 
feareth  the  Lord  shall  indeed  be  praised  "  [ibid.  30]  means  Palti 
b.  Layish.  R.  Samuel  b.  Nahmeni  in  the  name  of  R.  Jonathan 
said  [ibid.  30]:  "  False  is  grace"  means  Joseph;  "  and  beauty 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  51 

vain  "  means  Boas  "  ;  "  .  .  .  that  feareth  the  Lord  "  means 
Palti  b.  Layish.  According  to  others,  "  False  is  the  grace" 
means  the  generation  of  Moses,  "and  vain  is  the  beauty" 
means  the  generation  of  Joshua;  "...  that  feareth  the 
Lord"  means  the  generation  of  Hezkiah.  And  still  according 
to  others,  "  False  is  the  grace  "  means  the  generation  of  Moses 
and  Joshua,  "  and  vain  is  the  beauty"  means  the  generation  of 
Hezkiah;  "  .  .  ,  fear  of  the  Lord,"  etc.,  means  the  genera- 
tion of  R,  Jehudah  b.  Elii.  As  it  was  said:  In  the  time  of  that 
rabbi  six  disciples  had  covered  themselves  with  one  garment 
(as  they  were  very  poor),  and  occupied  themselves  with  the  study 
of  the  Torah. 

MISHNA  //.  :  If  a  death  occurs  in  the  house  of  the  king, 
he  must  not  leave  the  gate  of  the  palace.  R.  Jehudah,  however, 
maintains:  If  he  is  willing  to  accompany  the  coffin,  he  may  do 
so,  as  we  find  that  David  accompanied  the  cofifin  of  Abner  [II 
Sam.  iii.  31]:  "And  King  David  walked  behind  the  bier."  But 
he  was  told  that  David  did  so  only  to  appease  the  spirit  of  the 
people.  And  at  the  condoling  meal  all  the  people  are  placed 
on  the  floor  and  he  is  seated  on  the  dais. 

GEMARA:  The  rabbis  taught:  In  those  places  where  it  is 
customary  for  women  to  follow  a  cofifin,  they  may  do  so;  and 
where  it  is  customary  for  them  to  precede  the  cofifin,  they  have 
to  do  accordingly.  R.  Jehudah,  however,  maintains  that  women 
must  always  precede  the  cofifin,  as  we  find  in  the  case  of  David, 
who  followed  the  cofifin,  as  in  the  above-cited  verse  in  the 
Mishna.  And  he  was  told  that  this  was  only  to  appease  the 
spirit  of  the  people.  And  they  were  appeased,  because  David 
used  to  go  from  the  men  to  the  women  and  from  the  women  to 
the  men  for  this  purpose.  As  it  is  written  [ibid.  37] :  "  And  all 
the  people  and  all  Israel  understood  on  that  day  that  it  had  not 
been  of  the  king."  Rabha  lectured:  It  is  written  [ibid.  35]: 
"  And  all  the  people  came  to  cause  David  to  eat  food  while  it 
was  yet  day."  (The  term  "  to  cause  "  is  expressed  in  Hebrew 
Le  habroth,  and  according  to  him  it  was  written  Le  hakhbroth. 
The  first  term  means  food  and  the  second  means  to  destroy — 
Korath);  from  which  it  is  to  be  inferred  that  in  the  beginning 
the  people  came  to  destroy  him  because  of  the  death  of  Abner, 
but  after  he  had  appeased  them  they  caused  him  to  eat.* 

*  In  the  Scripture  which  is  before  us  there  is  nothing  of  the  kind.  However, 
we  have  remarked  several  times  that  their  text  of  the  Scripture  was  different  from 
ours.    And  so  also  is  it  remarked  in  a  foot-note  in  the  Wilna  edition,  1895. 


52  THE    BABYLONIAN    TALMUD. 

Said  R.  Jehudah  in  the  name  of  Rabh :  Why  was  Abner 
punished  ?  Because  he  ought  to  have  warned  Saul  he  should 
not  kill  the  priest  of  Nob,  and  he  did  not  do  so.  R.  Itz'hak, 
however,  maintains:  He  did  warn,  but  was  not  listened  to. 
And  both  infer  this  from  the  following  verses  [ibid.  33,  34]: 
"And  the  king  lamented  over  Abner,  and  said,  O  that  Abner 
had  to  die  as  the  worthless  dieth !  Thy  hands  were  not  bound 
and  thy  feet  were  not  put  in  fetters  ...  "  The  one  who 
said  that  he  did  not  warn  interprets  thus:  "Thy  hands  were 
not  bound  and  thy  feet  were  not  put  in  fetters."  Why  didst 
thou  not  warn  ?  And  he  who  said  that  he  did,  but  was  not 
listened  to,  interprets  it  thus:  "  O  that  Abner  should  die  as  the 
worthless  dieth  !  Thy  hands  were  not  bound  ...  "  And 
thou  didst  warn  Saul.  Why,  then,  "  as  one  falleth  before  men 
of  wickedness  art  thou  fallen  "  ?  But  according  to  the  latter, 
that  he  did  warn — why  was  Abner  punished  ?  Said  R.  Na'hman 
b.  Itz'hak:  Because  he  postponed  the  kingdom  of  David  for  two 
years  and  a  half. 

MISHNA//7. :  And  he  (the  king)  declares  a  war  which  is 
not  commanded  in  the  Scripture,  after  consultation  with  the 
court  of  twenty-one  judges.  He  may  also  establish  a  way  in 
private  property,  and  nobody  has  a  right  to  protest  against  it. 
The  way  of  a  king  has  no  limit.  When  the  military  take  plunder 
from  the  enemy,  they  must  transfer  it  to  the  king,  and  he  takes 
his  share  first. 

GEMARA:  Was  not  this  already  taught  in  the  first  Mishna 
of  this  tract:  A  court  of  seventy-one  judges  is  needed  to  decide 
upon  battles  which  are  not  commanded,  etc.  ?  Because  it  teaches 
of  other  things  which  belong  to  the  king,  this  is  also  repeated. 
R.  Jehudah  in  the  name  of  Samuel  said:  All  which  is  written 
in  I  Samuel,  viii.  in  that  portion  relating  to  a  king,  the  king  is 
allowed  to  do.  Rabh,  however,  maintains  that  the  whole  portion 
was  not  said  except  to  warn  them.  The  above  Amoraim  difTer 
in  the  same  respect  as  the  Tanaim  of  the  following  Boraitha :  It  is 
written  [Deut.  xvii.  15]:"  Set  a  king  over  thee, ' '  etc.  According 
to  R.  Jose,  all  that  is  written  concerning  a  king  in  Samuel,  the 
king  is  allowed  to  do.  R.  Jehudah,  however,  maintains  that  the 
whole  portion  is  written  only  to  frighten  them,  as  the  expres- 
sion, "to  set  a  king  over  thee,"  means  that  the  fear  of  the  king 
shall  be  always  upon  you.  And  thus  R.  Jehudah  used  to  say: 
There  are  three  positive  commandments  which  Israel  was  com- 
manded  at  the  time  they  entered  Palestine,   viz. :    They  shall 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  53 

appoint  a  king;  they  shall  destroy  the  descendants  of  Amalek; 
and  they  shall  build  a  temple.  R.  N'hurai,  however,  says:  The 
whole  portion  was  said  only  because  they  murnnured  against 
Samuel,  requesting  a  king.  As  it  is  written  [ibid.,  ibid.  14]: 
"  And  thou  sayest,  I  wish  to  set  a  king  over  me,"  etc. 

There  is  a  Boraitha:  R.  Eliezer  said:  The  elders  of  that 
generation  rightly  asked  Samuel  for  a  king.  As  it  reads  [I  Sam. 
viii.  5]:  "  Appoint  for  us  a  king  to  judge  us  like  all  the  nations." 
But  the  commoners  who  were  among  them  degraded  the  case. 
As  it  reads  [ibid.,  ibid.  20]:  "  That  we  also  may  ourselves  be 
like  all  the  nations;  and  that  our  king  may  judge  us,  and  go  out 
before  us,  and  fight  our  battles." 

There  is  another  Boraitha:  R.  Jose  said:  Three  positive 
commandments  Israel  was  commanded  when  they  entered  Pales- 
tine, viz.:  They  shall  appoint  a  king;  they  shall  destroy  the 
descendants  of  Amalek;  and  they  shall  build  a  temple.  But  it 
was  not  known  which  was  the  first.  However,  from  [Ex.  xvii. 
16],  "  And  he  said.  Because  the  Lord  hath  sworn  on  his  throne 
that  the  Lord  will  have  war  with  Amalek  from  generation  to 
generation,"  it  is  to  be  inferred  that  the  commandment  relating 
to  the  king  was  first,  because  the  word  "  throne  "  implies  a  king. 
As  it  is  written  [I  Chron.  xxix.  23] :  "  Then  sat  Solomon  on  the 
throne  of  the  Lord  as  king."  But  it  was  still  unknown  which 
should  be  first,  the  case  of  Amalek  or  the  temple.  But  from 
[Deut.  xii.  10],  "  He  will  give  you  rest  from  all  your  enemies 
.  .  .  and  then  shall  it  be  that  the  place,"  etc.,  it  is  to  be 
inferred  that  the  cutting  off  of  the  nation  of  Amalek  was  to 
be  first.  And  so  was  it  with  David.  As  it  reads  [H  Sam.  vii. 
i]:  "  And  it  came  to  pass,  when  the  king  dwelt  in  his  house, 
and  the  Lord  had  given  him  rest,"  etc.,  he  spake  then  to  Nathan 
the  prophet  about  the  Temple. 

The  rabbis  taught:  The  treasures  of  kings  which  are  plun- 
dered in  time  of  war  belong  to  the  king  only;  all  other  plunder, 
however,  half  to  the  king  and  half  to  the  people.  Said  Abayi 
to  R.  Dimi,  according  to  others  to  R.  Aha:  It  is  correct  that  the 
treasures  of  kings  belong  to  the  king,  as  so  it  is  customary.  But 
from  where  do  we  know  that  other  plunder  is  half  to  the  king, 
etc.?  From  [I  Chron.  xxix.  22J  :  "  And  they  anointed  him  unto 
the  Lord  as  chief  ruler,  and  Zadok  as  priest."  We  see,  then, 
that  he  compares  the  ruler  to  Zadok.  As  in  the  case  of  Zadok 
the  high-priest,  a  half  belongs  to  him  and  a  half  to  his  brother, 
the  same  is  the  case  with  the  ruler.     And  wherefrom  do  you 


54  THE    BABYLONIAN    TALMUD. 

know  that  in  the  case  of  Zadok  it  is  so  ?  From  the  following 
Boraitha:  Rabbi  said:  It  reads  [Lev.  xxiv.  9] :  "And  it  shall 
belong  to  Aaron  and  to  his  sons,"  meaning  half  to  Aaron  and 
half  to  his  sons. 

MISHNA  IV.  :  He  (the  king)  must  not  marry  more  than 
eighteen  wives.  R.  Jehudah,  however,  maintains:  He  may 
marry  as  many  as  he  likes,  provided  that  they  shall  not  turn  his 
heart  away.  And  R.  Simeon  maintains:  Even  one  wife,  should 
she  be  liable  to  turn  his  heart  away,  he  must  not  marry  her. 
And  the  verse  which  reads,  "  Neither  shall  he  take  to  himself 
many  wives,"  means  even  when  they  were  similar  to  Abigail. 

GEMARA:  Shall  we  assume  that  R.  Jehudah  takes  account 
of  the  reason  mentioned  in  the  Scriptures  and  R.  Simeon  does 
not  ?  Have  we  not  heard  elsewhere  just  the  reverse  ?  A  widow 
must  not  be  pledged,  no  matter  if  she  be  rich  or  poor.  As  it  is 
written  [Deut.  xxiv.  17]:  "  Thou  shalt  not  take  in  pledge  the 
raiment  of  a  widow."  So  is  the  decree  of  R.  Jehudah.  R. 
Simeon,  however,  maintains:  If  she  be  rich  she  may  be  pledged, 
but  when  she  is  poor  she  must  not  be  pledged.  And  one  is 
obliged  to  return  the  pledge  to  her.  And  to  the  question:  How 
is  this  to  be  understood  ?  it  was  said  thus:  If  you  take  a  pledge 
from  her,  you  are  obliged,  biblically,  to  return  it  every  evening, 
and  by  this  act  she  will  get  a  bad  name,  etc.  Hence  we  see  that 
R.  Jehudah  does  not  take  account  of  the  reason  mentioned  in 
the  Scriptures  (as  there  it  is  written:  "  You  shall  return  to  him; 
as  if  not,  he  will  not  have  whereupon  to  sleep,"  which  treats 
only  of  the  poor,  and  R.  Jehudah's  theory  is  that  even  a  rich 
person  must  not  be  pledged)  ?  R.  Jehudah  does  not  take 
account  of  the  reason  in  all  other  cases.  But  here  it  is  different, 
as  the  verse  itself  explains  the  reason — that  "  his  heart  shall  not 
be  turned  away."  And  R.  Simeon  may  also  say:  Do  we  not 
take  account  in  all  other  cases  of  the  reason  ?  Why,  then,  does 
the  Scripture  give  the  reason  here  ?  Let  it  say,  "  He  shall  not 
marry  many  wives,"  and  we  would  understand  the  reason  that 
it  is  because  of  his  heart.  And  as  the  reason  is  mentioned,  it  is 
for  the  purpose  that  even  if  only  one,  and  she  is  liable  to  "  turn 
his  heart  away,"  he  must  not  marry  her. 

The  number  eighteen  mentioned  in  the  Mishna,  whence  is  it 
deduced  ?  From  [II  Sam.  iii.  2-5]:  "  And  there  were  born  unto 
David  sons  in  Hebron:  And  his  first-born  was  Amnon,  of 
Achinoam  the  Yizreelitess;  and  his  second  was  Kilab,  of  Abigayil 
the  wife  of  Nabal  the  Carmelite;  and  the  third,  Abshalom,  the 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  55 

son  of  Maachah  the  daughter  of  Thalmai  the  king  of  Geshur; 
and  the  fourth,  Adonijah,  the  son  of  Chaggith ;  and  the  fifth, 
Shephatyah,  the  son  of  Abital;  and  the  sixth,  Yithream  by 
Eglah,  David's  wife.  These  were  born  unto  David  in  Hebron." 
And  the  prophet  said  [ibid.,  ibid.  xii.  8]:  "  And  if  this  be  too 
little,  I  could  bestow  on  thee  yet  many  more  like  these."  * 

Now  let  us  see!  The  number  of  the  wives  mentioned  in  the 
Scriptures  is  six.  "  Like  this  "  is  six  more,  "  and  like  this  "  is 
again  six  more,  of  which  the  total  is  eighteen.  But  was  not 
Michal  his  wife,  who  is  not  mentioned  ?  Said  Rabh;  Eglah 
is  identical  with  Michal.  And  why  was  she  named  Eglah  ? 
Because  he  liked  her  with  the  liking  of  a  cow  for  her  new-born 
calf.  And  so  also  it  reads  in  Judges,  xiv.  18:  "  And  he  said 
unto  them,  If  he  had  not  ploughed  with  my  heifer,"  etc.  (from 
which  we  see  that  he  names  the  wife  heifer  or  calf).t  But  had, 
then,  Michal  children  ?  Is  it  not  written  [II  Sam.  vi.  23]: 
"  And  Michal  the  daughter  of  Saul  had  no  child,"  etc.?  Said 
R.  Hisda:  She  had  no  children  after  that  time  (mentioned  in  the 
Scripture),  but  previous  to  this  she  had  children.  But  is  it  not 
written  [ibid.  v.  13]:  "And  David  took  yet  more  concubines 
and  wives  out  of  Jerusalem."  (Hence  it  is  to  be  supposed  that 
he  married  more  than  eighteen.)  Nay,  he  married  more,  to 
fulfil  the  number  of  eighteen.  What  are  wives,  and  what  are 
concubines  ?  Said  R.  Jehudah:  Wives  are  married  by  betrothal 
and  marriage  contract;  concubines  are  without  both  of  them. 

R.  Jehudah  in  the  name  of  Rabh  says :  Four  hundred  children 
were  born  to  David  by  the  handsome  women  whom  he  took 
captive  {i.e.,  those  mentioned  in  Deut.  xxi.  11).  All  of  them 
had  never  cut  their  hair.  They  were  placed  in  golden  carra. 
And  in  time  of  war  they  were  placed  with  the  chief  officers  of 
the  military,  and  they  were  the  mighty  soldiers  in  David's  army. 
The  same  said  again  in  the  name  of  the  same  authority:  Thamar 
was  a  daughter  of  one  of  the  above-mentioned  handsome  women. 
As  it  reads  [II  Sam.  xiii.  13]:  "  But  now,  O  speak,  I  pray  thee, 
unto  the  king;  for  he  will  not  withhold  me  from  thee."  And 
if  she  were  really  his  daughter,  how  could  she  say  that  the  king 
would  allow  a  sister  to  marry  her  brother  ?  Infer  from  this  that 
she  was  one  of  the  children  borne  by  one  of  the  above-mentioned 
handsome  women.     It  reads  [ibid.  3-10]:  "  But  Amnon  had  a 

*  The  term  in  Hebrew  is  "  Khohino  ve  Khohino  "—literally,  "  like  this  and  like 
this."     Hence  the  analogy  in  text. 
\  Eglah  is,  literally,  "  a  calf." 


56  THE    BABYLONIAN    TALMUD. 

friend  .  .  .  and  Yonadab  was  a  very  shrewd  man."  Said 
R.  Jehudah  in  the  name  of  Rabh :  He  was  shrewd  to  advise 
evil.  It  reads  [ibid.  19]:  "  And  Thamar  put  ashes  on  her  head, 
and  the  garment  of  divers  colors  which  was  on  her  she  rent." 
There  is  a  Boraitha  in  the  name  of  R.  Jehoshua  b.  Karha: 
From  that  which  happened  to  Thamar,  a  great  safeguard  was  de- 
creed by  the  sages,  as  it  was  said:  If  it  so  happened  to  daughters 
of  kings,  so  much  the  more  could  it  happen  to  daughters  of 
commoners;  and  if  to  the  chaste,  so  much  the  more  to  the  lewd. 
And  therefore  said  R.  Jehudah  in  the  name  of  Rabh:  At  that 
time  a  decree  was  made  that  one  must  not  stay  with  a  married 
woman  alone,  nor  with  a  single  one.  Is  that  so  ?  Is  this  not 
prohibited  biblically  ?  As  R.  Johanan  in  the  name  of  R.  Simeon 
b.  Johozadek  said :  Where  do  we  find  a  hint  in  the  Scriptures 
that  one  must  not  stay  alone  with  a  married  woman  ?  [Deut. 
xiii.  7]  :"  If  thy  brother,  the  son  of  thy  mother  .  .  .  should 
entice  thee."  Does,  then,  only  a  brother  from  the  mother's 
side  entice,  and  not  a  brother  from  the  father's  side  ?  It  is  but 
to  say  that  only  a  son  may  stay  alone  with  his  mother,  but  it  is 
not  allowed  for  anyone  besides  to  stay  alone  with  a  married 
woman.  (Hence  it  is  biblical  ?)  Say  that  at  that  time  it  was 
decreed  that  one  must  not  stay  alone  even  with  a  single 
woman. 

It  is  written  [I  Kings,  i.  5]:  "And  Adoniyah  the  son  of 
Chaggith  exalted  himself,  saying,  I  shall  be  king."  Said  R. 
Jehudah  in  the  name  of  Rabh:  Infer  from  this  that  he  wanted 
to  place  the  crown  on  his  head  and  could  not.  (Rashi  explains 
this  that  there  was  a  band  of  gold  in  the  crown  which  fitted  the 
descendants  of  David  who  had  an  indentation  in  their  heads 
which  Adoniyah  had  not.)  It  is  written  further:  "  And  he 
procured  himself  a  chariot  and  horsemen,  and  fifty  men  who  ran 
before  him."  What  is  there  exceptional  in  this  for  a  prince  ? 
Said  R.  Jehudah  in  the  name  of  Rabh:  The  milt  of  all  of  them 
was  taken  out  (so  that  it  should  be  easy  for  them  to  run),  and 
also  the  flesh  of  the  soles  of  their  feet  was  cut  off. 

MISHNA  v.:  He  (the  king)  must  not  acquire  many  horses 
— only  sufficient  for  his  chariots;  and  also  he  must  not  acquire 
more  gold  and  silver  than  to  pay  the  military.  He  must  also 
write  the  Holy  Scrolls  for  himself;  when  he  goes  to  war  he  must 
bear  them  with  him ;  when  he  enters  the  city  they  must  be  with 
him,  and  the  same  when  he  sits  judging  the  people;  and  when 
he  takes  his  meals  they  must  be  placed  opposite  him.     As  it  is 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).  57 

written  [Deut.  xvii.  19]:  "And  it  shall  be  with  him,  and  he 
shall  read  therein  all  the  days  of  his  life." 

GEMARA:  The  rabbis  taught:  He  shall  not  acquire  many 
horses,  and  lest  one  say  even  those  which  are  needed  for  his 
chariots,  therefore  it  is  written  "  for  himself,"  from  which  it  is 
to  be  inferred  that  for  the  chariots  he  may;  but  if  so,  what, 
then,  is  meant  by  "  he  shall  not  acquire  many  horses"  ?  It 
means  horses  which  should  remain  idle.  And  whence  do  we 
deduce  that  even  one  horse  which  is  idle  is  under  the  negative 
commandment,  "He  shall  not  acquire  many  horses"?  For 
it  is  written  there  [ibid.,  ibid.  16],  "  in  order  to  acquire  many 
horses."  Is  it  not  said  above  of  even  one  horse,  and  it  is  idle, 
that  he  transgresses  the  commandment,  "  He  shall  not  acquire 
many  horses  "  ?  Why  is  it  written  "  in  order  to  acquire,"  etc.? 
That  he  should  be  responsible  for  the  transgressing  of  the  above 
commandment  for  each  horse  which  is  idle.  But  how  would 
it  be  if  in  the  Scripture  were  not  mentioned  "  for  himself " — he 
would  not  be  allowed  even  for  the  chariots  ?  Is  this  possible  ? 
Then,  it  could  be  explained,  he  should  have  the  exact  number 
needed,  but  not  more. 

"  Much  gold  and  silver,''  etc.  The  rabbis  taught:  It  is 
written:  "  He  shall  not  acquire  much  gold  and  silver" — lest 
one  say  not  even  sufficient  for  paying  the  military,  therefore 
it  is  written  "  for  himself."  But  how  Avould  it  be  if  this  were 
not  written — he  would  not  be  allowed,  even  for  paying  the  mili- 
tary. Is  that  possible  ?  Then,  it  could  be  explained  that  he 
should  have  the  exact  amount,  but  not  more.  Now,  as  we  see 
that  from  the  words  "  for  himself"  things  are  inferred,  what  do 
you  infer  from  the  same  words  which  are  written  concerning 
wives  ?  This  excludes  commoners,  who  are  allowed  to  take  as 
many  as  they  please. 

R.  Jehudah  propounded  a  contradiction  in  the  following 
verses  [I  Kings,  v.  6] :  "  And  Solomon  had  forty  thousand  stalls 
for  the  horses  for  his  chariots,  and  twelve  thousand  horsemen  "  ; 
and  [II  Chron.  ix.  25]:  "  And  Solomon  had  four  thousand  stalls 
for  horses  and  chariots,  and  twelve  thousand  whom  he  quartered 
in  the  cities  for  chariots,  and  near  the  king  at  Jerusalem."  How 
is  it  to  be  understood  ?  If  there  were  forty  thousand  stables, 
every  one  of  them  contained  four  thousand  stalls;  and  if  it  were 
only  four  thousand  stables,  then  each  contained  forty  thousand 
stalls.  R.  Itz'hak  propounded  the  following  contradiction:  It 
reads  [I  Kings,  x.  21]:  "  None  were  of  silver;  it  was  not  in  the 


58  THE    BABYLONIAN    TALMUD. 

least  valued  in  the  days  of  Solomon  "  ;  and  [ibid.  27]  :  "  And  the 
king  rendered  the  silver  in  Jerusalem  like  stones."'  (Hence  it 
had  some  value  ?)  This  presents  no  difficulty.  The  first  verse 
speaks  of  before  Solomon  married  the  daughter  of  Pharaoh,  and 
the  second  after  this. 

R.  Itz'hak  said:  (Here  is  repeated  from  Tract  Sabbath,  ist 
ed.,  page  109,  in  the  name  of  R.  Jehudah.  See  paragraph  there 
— same  rabbi.) 

The  same  said  again:  Why  does  not  the  Scripture  explain 
the  reason  of  its  law  ?  Because  in  two  verses  it  was  so  done, 
and  the  greatest  men  of  a  generation  stumbled  because  of  them. 
They  are,  "  he  shall  not  acquire  many  wives,"  for  the  purpose 
that  they  should  not  *'  turn  his  heart  away."  And  King  Solo- 
mon said:  I  shall  take  many  wives,  and  my  heart  shall  not  be 
turned  away.  However  [I  Kings,  xi.  4]:  "  And  it  came  to  pass 
that  his  wives  turned  away  his  heart. "  And  the  same 
was  the  case  with  the  horses,  of  which  he  said :  I  shall  acquire 
many,  and  shall  not  return  to  Egypt.  However  [ibid.  x.  29] : 
"  And  a  chariot-team  came  up  and  went  out  of  Egypt,"  etc. 

"  Write  the  Holy  Scrolls.''  There  is  a  Boraitha:  He  must 
not  suffice  himself  with  those  left  by  his  parents.  Rabba  said: 
It  is  a  meritorious  act  for  one  to  write  the  Holy  Scrolls  at  his 
own  expense,  though  they  were  left  to  him  by  his  parents.  As 
it  is  written  [Deut.  xxxi.  19]:  "  Now  therefore  write  this  song." 
Abayi  objected  from  our  Mishna:  "  He  shall  write  the  Holy 
Scrolls  for  himself,"  and  must  not  suffice  himself  with  those 
of  his  parents.  And  this  speaks  only  of  a  king,  but  not  of  a 
commoner.  Our  Mishna  treats  of  two  Holy  Scrolls,  as  it  is 
explained  in  the  following  Boraitha:  It  is  written  [ibid.  xvii. 
18]:  "  He  shall  write  for  himself  a  copy  of  this  law,"  which 
means  that  he  must  write  for  himself  two  Holy  Scrolls,  one 
which  he  must  bear  with  him  wherever  he  goes,  and  one  which 
shall  remain  in  his  treasury.  The  one  he  has  to  bear  with  him 
he  shall  write  in  the  form  of  an  amulet,  and  place  it  on  his  arm. 
However,  he  must  not  enter  with  it  a  bath  or  toilet  house. 
As  it  is  written  [ibid.,  ibid.  19] :  "  And  it  shall  be  with  him  and 
he  shall  read,"  which  means  it  shall  be  with  him  in  those  places 
where  it  is  allowed  to  read  it,  but  not  in  those  where  it  is  not. 

Mar  Zutra,  according  to  others  Mar  Uqba,  said:  "  Originally 
the  Torah  was  given  to  Israel  in  Hebrew  characters  and  in  the 
Hebrew  language;  the  second  time  it  was  given  to  Israel  in 
Ezra's  time,    but   in   Assyrian   characters  and  in  the  Aramaic 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  59 

language;  finally  the  Assyrian  characters  and  the  Hebrew 
language  were  selected  for  Israel,  and  the  Hebrew  characters 
and  the  Aramaic  language  were  left  to  the  Hediotim  (Idiots). 
Who  are  meant  by  Idiots?  Said  R.  Hisda:  The  Samaritans. 
What  is  meant  by  Hebrew  characters?  Said  R.  Hisda:  The 
Libnuah  characters.* 

There  is  a  Boraitha:  R.  Jose  said:  Ezra  was  worthy  that  the 
Torah  should  be  given  through  him,  if  Moses  had  not  preceded 
him.  Concerning  Moses  it  reads  [Ex.  xix.  3]:  "And  Moses 
went  up  unto  God  "  ;  and  concerning  Ezra  it  reads  [Ezra,  vii. 
6]:  "  This  Ezra  went  up."  The  term  "  went  up"  concerning 
Moses  means  to  receive  the  Torah,  the  same  being  meant  by  the 
same  expression  concerning  Ezra.  Farther  on  it  is  written 
[Deut.  iv.  14]:  "And  me  the  Lord  commanded  at  that  time 
to  teach  you  statutes  and  ordinances."  And  it  is  also  written 
[Ezra,  vii.  10]:  "  For  Ezra  had  directed  his  heart  to  inquire  into 
the  law  of  the  Lord  and  to  do  it,  and  to  teach  in  Israel  statutes 
and  ordinances."  And  although  the  Torah  was  not  given 
through  him,  the  characters  of  it  were  changed  through  him. 
As  it  is  written  [ibid.  iv.  7]  :  "  And  the  writing  of  the  letter  was 
written  in  Aramaic,  and  interpreted  in  Aramaic."  And  it  is  also 
written  [Dan.  v.  8]:  "They  were  not  able  to  read  the  writing, 
nor  to  make  its  interpretation."  (Hence  we  see  that  the  new 
characters  the  Aramaic  people  could  not  read.)  And  why  are 
they  named  Assyrian  ?  Because  they  were  brought  from  the 
country  of  Assyria. 

There  is  another  Boraitha :  Rabbi  said:  In  the  very  beginning 
the  Torah  was  given  to  Israel  in  the  Assyrian  characters,  but 
after  they  had  sinned  it  was  turned  over  to  them  as  a  dasher. 
However,  after  they  repented,  it  was  returned  to  them.  As  it 
is  written  [Zech.  ix.  12]:  "  Return  you  to  the  stronghold,  ye 
hopeful  prisoners:  even  to-day  do  I  declare  that  I  will  recom- 
pense twofold  unto  thee."  And  why  is  it  named  Assyrian  ? 
Because  the  characters  are  praised  above  all  other  characters. 
("  Ashur  "  in  Hebrew  means  "  praise.")  R.  Simeon  b.  Elazar, 
however,  said  in  the  name  of  R.  Eliezer  b.  Parta,  quoting  R. 
Elazar  the  Modai,  that  the  characters  were  not  changed  at  all. 
As  it  is  written  [Ex.  xxvii.  10]. f     And  it  is  also  written  [Book 

*  For  the  explanation  of  this  passage  see  our  "  Pentateuch  :  Its  Languages  and 
its  Characters"     (pp.  14,  15).     See  also  there  who  Utra  or  Uqba  was. 

f  We  have  not  inserted  the  verse,  as  the  translation  of  it  does  not  correspond 
at  all. 


6o  THE    BABYLONIAN    TALMUD. 

of  Esther,  viii.  9]  :  "  And  to  the  Jews  according  to  their  writing, 
and  according  to  their  language,"  From  which  it  is  to  be 
inferred,  that  as  their  language  was  not  changed  neither  was 
their  writing.  But  if  so,  what  means  the  term  Mishnaf  in  the 
verse  in  Deuteronomy  cited  above:  "  He  shall  write  a  copy  of 
this  law  " — the  two  copies  of  the  Holy  Scrolls  which  a  king  has 
to  write,  as  said  above:  One  for  the  treasury  and  one  which  he 
must  bear  attached  to  his  arm.  As  it  is  written  [Ps.  xvi.  8]:  "I 
have  always  set  the  Lord  before  me,  that,  being  at  my  right 
hand,  I  might  not  be  moved."  But  he  who  maintains  that  the 
writing  was  not  changed  at  all,  what  does  he  infer  from  the  verse 
just  cited  ?  That  which  was  said  by  R.  Hana  b.  Bizna:  He  who 
praises  should  always  think  that  the  Shekinah  is  opposite  him, 
as  the  cited  verse  reads. 

MISHNA  VI.:  One  must  not  ride  on  his,  the  king's  horse, 
and  also  must  not  seat  himself  on  his  chair,  and  must  not  make 
use  of  his  sceptre.  And  none  must  be  present  when  he  cuts  his 
hair,  and  not  when  he  is  naked,  and  not  when  he  is  in  the  bath- 
house. As  it  is  written:  "  Thou  shalt  set  a  king  over  thee," 
which  means  that  his  fear  shall  be  always  upon  thee. 

GEMARA:  R,  Jacob  in  the  name  of  R.  Johanan  said: 
Abishag  was  allowed  to  Solomon  but  not  to  Adoniyah,  because 
Solomon  was  a  king;  and  to  a  king  it  is  allowed  to  make  use  of 
the  sceptre  of  his  predecessor,  but  not  to  Adoniyah,  who  was 
a  commoner.  How  is  to  be  understood  that  which  is  written 
in  I  Kings,  4  :  "  And  she  became  an  attendant  on  the  king"; 
and  to  her  request  that  the  king  should  marry  her  he  answered : 
You  are  prohibited  to  me  (as  I  have  already  eighteen  wives). 
Said  R.  Shoman  b.  Aba  :  Come  and  see  how  hard  is  divorce 
in  the  eyes  of  the  sages:  So  they  permitted  Abishag  to  be  with 
David  g.nd  did  not  allow  him  to  divorce  one  of  his  wives  in  order 
to  marry  her.  Said  R.  Eliezer:  He  who  divorces  his  first  wife, 
even  the  altar  sheds  tears  on  account  of  him.  As  it  is  written 
[Mai.  ii.  13]:  "  And  this  do  ye  secondly,  covering  the  altar  of 
the  Lord  with  tears,  with  weeping  and  with  loud  complaint, 
so  that  he  turneth  not  any  more  his  regard  to  the  offering,  nor 
receiveth  it  with  favor  at  your  hand."  And  immediately  after 
it  reads :  "  Yet  ye  say,  Wherefore  ?  Because  the  Lord  hath  been 
witness  between  thee  and  the  wife  of  thy  youth,  against  whom 
thou  hast  indeed  dealt  treacherously:  yet  is  she  thy  companion, 
and  the  wife  of  thy  covenant." 

*  The  term  "  Shana"  means  to  "repeat,"  and  also  "  change." 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  6i 

R.  Johanan,  according  to  others  R.  Elazar,  said:  Frequently, 
one's  wife  dies  when  her  husband  owes  money  and  has  not  to 
pay.  As  it  is  written  [Prov.  xxii.  27]:  "  If  thou  have  nothing 
to  pay,  why  should  he  take  away  thy  bed  from  under  thee  ?" 
The  same  said  again:  To  him  whose  first  wife  dies,  it  is  as  if  the 
Temple  had  been  destroyed  in  his  days.  As  it  is  written  [Ezek. 
xxiv.  16  and  18]:  "  I  will  take  away  from  thee  the  desire  of  thy 
eyes,"  etc.  "  And  when  I  had  spoken  unto  the  people  in  the 
morning,  my  wife  died  at  evening";  and  [ibid.  21]:  "  I  will 
profane  my  sanctuary,  the  pride  of  your  strength,  the  desire 
of  your  eyes."  And  R.  Alexander  said:  To  him  whose  wife 
dies,  the  whole  world  is  dark  for  him.  As  it  is  written  [Job, 
xviii.  6] :  "  The  light  becometh  dark  in  his  tent,  and  his  lamp 
will  be  quenched  above  him."  And  R.  Jose  b.  Hanina  adds: 
Also  his  steps  become  shortened,  as  immediately  it  reads:  "  His 
powerful  steps  will  be  narrowed."  And  R.  Abuhu  adds:  Also 
his  advice  is  no  more  of  use;  as  the  end  of  the  cited  verse  reads: 
"  and  his  own  counsel  will  cast  him  down." 

Rabba  b.  Bahana  said  in  the  name  of  R.  Johanan:  It  is  hard 
for  heaven  to  appoint  marriages  as  it  was  to  divide  the  sea;  as 
in  Ps.  Ixviii.  7:  "  God  places  those  who  are  solitary  in  the  midst 
of  their  families  :  he  bringeth  out  those  who  are  bound  unto 
happiness."  * 

R.  Samuel  b.  Na'hman  said:  For  everything  there  may  be 
an  exchange,  but  for  the  wife  of  one's  youth.  As  it  is  written 
[Is.  liv.  6] :  "  And  as  a  wife  of  one's  youth  that  was  rejected." 
R.  Jehudah  taught  to  his  son  R.  Itz'hak:  One  does  not  find 
pleasure  only  in  his  first  wife,  as  it  is  written  [Prov.  v.  18]  :  "  Thy 
fountain  will  be  blessed  ;  and  rejoice  with  the  wife  of  thy  youth. 
And  to  the  question  of  his  son.  Whom  do  you  mean  ?  he 
answered:  E.g.,  your  mother.  Is  that  so  ?  We  are  aware  that 
the  same  read  before  R.  Itz'hak  his  son  [Eccl.  vii.  26]:  "  And 
I  find  as  more  bitter  than  death  the  woman  whose  heart  is  snares 
and  nets,"  etc.  And  to  the  question  of  his  son,  Whom  do  you 
mean?  he  answered:  E.g.,  your  mother.  True,  she  was  hard 
to  him  at  the  start,  but  finally  she  overruled  herself  and  did  all 
he  pleased.  R.  Samuel  b.  Umaya  said  in  the  name  of  Rabh: 
A  wife  is  similar  to  a  piece  of  metal,  and  does  not  make  any 
covenant  but  with  him  who  makes  her  a  vessel.     As  it  is  written 

*  The  Talmud  takes  the  last  cited  words  for  the  exodus  from  Egypt,  and  explains  : 
"  Do  not  read  the  Hebrew  term  so,  but  otherwise,"  which  it  is  impossible  to  give  in 
the  English  version. 


62  THE    BABYLONIAN    TALMUD. 

[Is.  Hv.  5] :  "  For  thy  husband  is  thy  master,"  etc.  There  is  a 
Boraitha:  One  dies  but  to  his  wife,  and  the  wife  dies  but  to  her 
husband.  The  first  is  deduced  from  [Ruth,  i.  3]:  "  Thereupon 
died  Elimelech  Naomi's  husband  ";  and  the  second  from  [Gen. 
xlviii.  7]:  "  And  as  for  me,  when  I  came  from  Padan,  Rachel 
died  by  me." 

"  Cuts  his  hair.''  The  rabbis  taught :  The  king  must  cut  his 
hair  every  day.  As  it  is  written  [Is.  xxxiii.  17]:  "  The  king  in 
his  beauty  shall  thy  eyes  behold."  A  high-priest  every  eve 
of  Sabbath,  and  the  commoner  priest  every  thirty  days.  Why 
every  eve  of  Sabbath  ?  Said  R.  Samuel  b.  Na'hman  in  the 
name  of  R.  Johanan:  Because  the  watching  priests  are  relieved 
every  eve  of  Sabbath.  And  why  for  a  commoner  every  thirty 
days  ?  Because  it  reads  [Ezek.  xliv.  20]  :  "  And  their  heads  shall 
they  not  shave  close,  nor  suffer  their  hair  to  grow  long:  they 
shall  only  crop  (the  hair  of)  their  heads."  And  there  is  an 
analogy  of  expression  from  a  Nazarite  [Num.  vi.  5].  As  con- 
cerning a  Nazarite  it  is  thirty  days,  the  same  is  the  case  here. 
And  whence  do  we  know  that  for  a  Nazarite  it  is  thirty  days  ? 
Said  R.  Mathna:  It  reads:  Holy  shall  he  be.  Because  the 
generation  of  YiJiiye  counts  thirty  (a  Yod  counts  ten,  a  He,  five, 
and  in  the  word  yihiye  there  are  two  Yods  and  two  Hes).  Said 
R.  Papa  to  Abayi:  Why  not  explain  the  above-cited  verse  as 
that  they  shall  not  be  allowed  to  let  their  hair  grow  at  all  ?  And 
he  answered:  If  it  read:  "  They  shall  not  let  their  hair  grow," 
your  explanation  would  be  correct;  but  as  it  reads  "  to  grow 
long,"  it  must  be  explained  as  the  rabbis  enact:  They  shall  let 
it  grow  thirty  days.  (Said  R.  Papa  again:)  If  so,  in  our  time, 
when  there  is  no  temple,  it  is  to  equalize  the  cutting  of  the  hair 
to  the  partaking  of  wine,  which  was  prohibited  to  the  priests 
only  when  they  had  to  enter  the  Temple  (as  after  the  case  of 
hair-cutting  immediately  follows  the  prohibition  of  the  partaking 
of  wine).  Is  that  so?  Have  we  not  learned  in  a  Boraitha: 
Rabbi  said:  I  say  that  it  is  prohibited  for  the  priest  to  drink 
wine  at  any  time  whatever.  But  what  can  I  do,  in  that  the 
destruction  of  the  Temple  was  their  remedy:  as  they  were  for- 
bidden to  drink  wine  in  order  that  they  should  not  enter  the 
Temple  while  drunk,  so,  now  that  the  Temple  no  longer  exists, 
they  do  not  care?  Said  Abayi:  According  to  whom  do  the 
priests  drink  wine  in  our  time  ?  In  accordance  with  Rabbi's 
statement. 

Rabbi  was  questioned:   How  was  the  hair-cutting  of  the  high- 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  63 

priest,  which  it  is  told  was  done  very  artistically  ?  And  he 
answered:  Go  and  see  the  hair-cutting  of  Ben  Aleshe.  And 
there  is  a  Boraitha:  Rabbi  said:  Not  in  vain  has  B.  Aleshe 
expended  his  money  to  learn  the  art  of  cutting  hair:  it  was  only 
to  show  how  the  high-priests  used  to  cut  their  hair. 


CHAPTER  III. 

RULES  AND  REGULATIONS  CONCERNING  THE  QUALIFICATION  OR  DIS- 
QUALIFICATION OF  JUDGES  AND  WITNESSES  WHO  MAY  DECIDE 
UPON  STRICT  LAW  AND  WHO  IN  ARBITRATION.  WHEN  A  REJEC- 
TION AGAINST  JUDGES  AND  WITNESSES  MAY  OR  MAY  NOT  TAKE 
PLACE.  OF  RELATIVES  THAT  ARE  DISQUALIFIED  AND  THOSE  THAT 
ARE  NOT.  HOW  THE  WITNESSES  SHOULD  BE  EXAMINED  IN  CIVIL 
CASES.  UNTIL  WHAT  TIME  NEW  EVIDENCE  MAY  OR  MAY  NOT 
AFFECT    A    DECISION    RENDERED. 

MISHNA  /.:  Civil  cases  by  three  ;  one  party  may  select  one 
and  SO  the  other,  and  both  of  them  select  one  more ;  so  is  the 
decree  of  R.  Meir.  The  sages,  however,  maintain  that  the  two 
judges  may  select  the  third  one.  One  party  may  reject  the 
judge  of  his  opponent,  according  to  R.  Meir.  The  sages,  how- 
ever, say  :  This  holds  good  only  when  the  party  brings  evidence 
that  the  judges  selected  by  his  opponent  are  relatives,  or  they  are 
unqualified  for  any  other  reason.  If,  however,  they  were  quali- 
fied, or  they  were  recognized  as  judges  from  a  higher  court,  no 
rejection  is  to  be  considered.  The  same  is  the  case  with  the  wit- 
nesses of  each  party,  according  to  R.  Meir,  so  that  the  rejection 
of  each  party  against  the  witnesses  of  its  opponent  may  be  taken 
into  consideration.  The  sages,  however,  say :  Such  holds  good 
only  in  the  cases  said  above  concerning  the  judges,  but  not  other- 
wise. 

GEMARA  :  How  is  to  be  understood  the  expression  of  the 
Mishna:  One  party  selects  one,  etc.?  Does  it  mean  one  party 
may  select  one  court  of  three  judges,  and  likewise  the  other;  and 
then  both  the  third  court,  which  would  be  altogether  nine  judges? 
Are,  then,  three  not  sufficient  ?  It  means,  if  one  party  selects  one 
judge  its  opponent  may  also  do  so,  and  then  both  may  select  the 
third  one.  And  what  is  the  reason  of  such  a  selection  ?  It  was 
said  in  Palestine  in  the  name  of  R.  Zera :  Because  each  party 
selects  its  own  judge,  and  both  agree  in  the  selection  of  the  third 
one,  the  decision  will  be  a  just  one. 

"  The  sages,  however,  say,"  etc.  Shall  we  assume  that  the 
point  of  their  difference  is  what  was  said  by  R.  Jehudah  in  the 

64 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  65 

name  of  Rabh  :  Witnesses  may  not  sign  a  document  unless  they 
are  aware  who  will  be  the  others ;  and  so  R.  Meir  does  not  hold 
this  theory  and  the  rabbis  do?  Nay!  All  hold  this  theory,  and 
the  point  of  their  difference  is  thus :  According  to  R.  Meir,  the 
consent  of  the  parties  is  also  needed  ;  but  the  rabbis  hold  that 
the  consent  of  the  judges,  but  not  of  the  parties,  is  needed. 

The  text  reads :  R.  Jehudah  said  in  the  name  of  Rabh :  Wit- 
nesses, etc.  There  is  also  a  Boraitha :  Pure-minded  people  of 
Jerusalem  used  not  to  sign  a  document  unless  they  were  aware 
who  was  the  other  who  was  to  sign  it,  and  also  would  not  sit  down 
to  judge  unless  they  were  aware  who  was  to  be  their  colleague, 
and  would  also  not  go  to  a  banquet  unless  they  were  aware  who 
were  invited  to  it. 

''  Each  party  may  reject,''  etc.  Has,  then,  one  the  right  to 
reject  judges?  Said  R.  Johanan  :  It  speaks  of  the  little  courts  in 
Syria,  where  there  were  Gentile  judges  who  were  not  recognized 
by  the  higher  court.  But  if  they  were,  no  objection  could  be 
taken  into  consideration.  But  does  not  the  latter  part  state : 
"  and  the  sages,  however,  say  .  .  .  recognized  by  the  court  "  ? 
From  which  it  is  to  be  understood  that  their  opponent  R.  Meir 
speaks  even  of  them  who  were  recognized  ?  They  mean  to  say  : 
If  not  disqualified  (on  account  of  kinship  or  bad  conduct)  they 
are  to  be  considered  as  if  they  were  authorized  judges  against 
whom  no  rejection  can  take  place. 

Come  and  hear :  The  sages  said  to  R.  Mair :  One  cannot  be 
trusted  with  any  right  to  protest  against  a  judge  who  was 
appointed  by  the  majority?  Read  :  One  has  no  right  to  reject  a 
judge  who  was  appointed  by  the  majority.  And  so  we  have 
learned  in  the  following  Boraitha :  One  may  reject  the  selected 
judge  of  his  opponent  until  he  has  selected  a  judge  who  was 
recognized  by  a  majority.  So  is  the  decree  of  R.  Mair.  But  are 
not  witnesses  considered  as  recognized  judges,  and  nevertheless 
R.  Mair  said  that  one  party  may  disqualify  the  witness  of  his 
opponent  ?  Aye  !  But  was  it  not  already  said  by  Resh  Lakish  : 
How  is  it  possible  that  a  holy  mouth  like  R.  Mair's  should  say 
such  a  thing?  Therefore  it  must  be  supposed  that  R.  Meir  did 
not  say  "witnesses,"  but  "his  witness "  (z>.,  a  single  witness). 
Let  us  see!  What  does  he  mean  by  one  witness?  If  concern- 
ing a  civil  case,  the  law  itself  disqualifies  him  ;  and  if  concerning 
an  oath,  he  is  trusted  by  the  law  as  if  there  were  two  witnesses.  It 
speaks  of  a  civil  case,  and  the  case  was  that  previously  the  parties 
accepted  him,  saying  that  his  testimony  would  be  considered  as 
5 


66  THE    BABYLONIAN  TALMUD. 

if  it  were  testified  by  two.  But,  after  all,  what  news  did  he  come 
to  teach  us — that  he  may  retract  ?  This  we  have  learned  already 
in  the  succeeding  Mishna,  which  states  that,  according  to  R. 
Mair,  he  may  retract,  to  which  R.  Dimi  b.  R.  Na'hman  b.  R. 
Joseph  said  that  the  Mishna  speaks  of  when  he  has  accepted  his 
father  as  a  third  judge  (and  because  biblically  a  father  is  not  fit 
to  judge  in  a  case  of  his  son),  he  may  retract  even  if  he  has 
previously  accepted  him.  Why  not  say  the  same  in  our  case, 
because  one  is  not  fit  for  a  civil  case  he  may  retract  although  he 
had  previously  accepted  him  ?  Both  cases  were  needed,  as  if  the 
case  about  his  father  only  were  stated  one  might  say  that  because 
the  same  is  fit  to  be  a  judge  in  other  cases,  therefore  the  rabbis 
maintain  that  no  retraction  is  to  be  considered ;  but  in  the  case 
of  a  commoner,  who  is  not  fit  to  be  a  judge  in  any  case  whatso- 
ever, the  retraction  would  hold  good,  even  in  accordance  with  the 
rabbis.  And  if  the  case  of  a  commoner  were  stated,  one  might 
say  that  only  in  that  case  R.  Meir  permitted  to  retract.  But  in 
the  other  case  he  agrees  with  the  rabbis,  therefore  both  are  stated. 

But  how  would  the  expression  of  the  Mishna  be  understood? 
It  speaks  about  the  judge  in  the  singular  (one  may  reject  the 
judge,  etc.),  and  concerning  witnesses,  it  speaks  in  the  plural 
(one  may  reject  the  witnesses,  etc.).  Hence  we  see  that  the 
Mishna  is  particular  in  its  expression.  How,  then,  can  you  say 
that  R.  Mair  maintains  a  single  witness  ?  Said  R.  Elazar :  It 
means  that  he — one  of  the  parties,  and  also  another  one  who 
does  not  belong  to  this  case — come  to  reject  this  witness,  as 
then  they  are  two  against  one,  and  therefore  the  rejection  holds 
good.  But,  after  all,  why  should  one  of  the  parties  have  a  right 
to  reject  ?  Is  he  not  interested  in  this  case,  and  there  is  a  rule 
that  the  testimony  of  such  is  not  to  be  taken  into  consideration. 
Said  R.  Aha  b.  R.  Ika :  The  case  was  that  he  laid  before  the 
court  the  reason  of  his  protest,  which  can  be  examined. 

Let  us  see  what  was  the  reason.  If,  e.g.,  robbery,  it  must 
not  be  listened  to,  as  he  is  interested  in  this  case.  Therefore  we 
must  say  that  the  reason  was  the  incompetence  of  his  family — 
e.g.,  that  he  or  his  father  was  a  bondsman,  who  was  not  as  yet 
liberated.  According  to  R.  Mair,  he  may  be  listened  to,  as 
his  testimony  is  against  the  entire  family.  The  rabbis,  however, 
maintain  that  even  then  he  must  not  be  listened  to  because  of 
his  interest  in  this  case,  and  the  court  has  not  to  consider  his 
testimony  at  all. 

When  R.  Dimi  came  from  Palestine,  he  said  in  the  name  of 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  67 

R.  Johanan  that  the  point  of  their  difference  is  two  parties  of 
witnesses,  i.e.,  e.g.,  the  borrower  said  :  "  I  have  two  parties  of  wit- 
nesses who  will  testify  to  my  right,"  and  brought  one  party  of 
them  against  which  the  lender  protests.  According  to  R.  Mair, 
the  protest  holds  good  because  the  opponent  himself  confessed 
that  he  had  another  party.  Hence  he  may  bring  the  other 
party,  against  whom  no  protest  would  be  considered  (and  his 
reason  is  that  a  proof  is  needed  to  each  claim,  even  if  it  is  not  so 
important  that  it  could  injure  the  case);  and  according  to  the 
rabbis,  no  protest  must  be  listened  to  even  in  such  a  case,  as  they 
do  not  desire  a  proof  to  each  claim.  But  when  there  was  only 
one  party  of  witnesses,  all  agree  that  no  rejection  is  considered. 

Said  R.  Ami  and  R.  Assi  to  R.  Johanan :  How  is  it  if  the 
other  party  of  witnesses  were  found  to  be  his  relatives,  or  incom- 
petent to  be  witnesses  for  any  other  reason,  should  the  testimony 
of  the  first  party  be  considered,  or  because  of  the  incompetence 
of  the  other  party,  the  first  party  also  loses  credit?  Said  R. 
Ashi :  The  testimony  of  the  first  party  was  already  accepted, 
and  therefore  there  is  no  basis  to  ignore  their  testimony  because 
of  the  incompetence  of  the  other  party.  Shall  we  assume  that 
R.  Mair  and  the  rabbis  differ  the  same  as  Rabbi  and  R.  Simeon 
b.  Gamaliel  differ  concerning  one  who  claims  that  he  has  bought 
a  document  and  "  hazakah  "  (Last  Gate,  p.  377),  and  in  the  dis- 
cussion we  come  to  the  conclusion  that  the  point  of  their  differ- 
ence is,  if  one  must  prove  his  words  or  not  ?  Nay  !  According 
to  R.  Simeon  b.  Gamaliel,  they  do  not  differ  at  all,  and  the 
point  of  their  difference  is  according  to  Rabbi's  statement  there. 
R.  Mair  holds  with  Rabbi.  The  rabbis,  however,  maintain  that 
Rabbi  does  so  only  in  case  of  the  claim  of  hazakah,  which  is 
based  upon  the  document;  but  in  our  case,  where  the  testimony 
of  the  witnesses  is  not  based  upon  that  of  others,  even  Rabbi 
admits  that  no  proof  is  needed. 

When  Rabbin  came  from  Palestine,  he  said  in  the  name  of  R. 
Johanan  that  the  first  part  of  our  Mishna  treats  of  incompetent 
witnesses  but  competent  judges,  and  because  they  reject  the 
witnesses  the  judges  are  also  rejected  ;  and  the  latter  part  speaks 
of  the  reverse — that  the  judges  were  incompetent  and  not  the 
witnesses,  and  the  witnesses  are  rejected  because  of  the  judges. 
Rabha  opposed  :  It  would  be  correct  to  say  that  because  of  the 
incompetence  of  the  witnesses  one  may  reject  the  judges, 
as  the  case  can  be  brought  before  other  judges.  But  how  can 
the  witnesses   be    rejected    because   of  the  judges?     Then  the 


68  THE    BABYLONIAN    TALMUD. 

party  would  remain  without  witnesses  at  all.  It  speaks  of  when 
there  was  another  party  of  witnesses.  But  how  would  it  be  if 
there  were  no  other  witnesses  ?  Then  no  rejection  is  to  be  con- 
sidered. Thus  Rabbin  said  the  same  that  R.  Dimi  said  ?  The 
theory  of  "  because  "  is  the  point  of  their  difference.  As  to  R. 
Dimi,  the  theory  of  because  is  not  to  be  used  at  all,  while 
according  to  Rabbin  it  is. 

The  text  says :  Resh  Lakish  said  :  "  The  holy  mouth  of  R. 
Mair  should  say  such  a  thing,"  etc.  Is  that  so?  Did  not  Ula 
say  that  he  who  saw  Resh  Lakish  in  the  college  saw  one  up- 
rooting hills  and  crushing  them  ?  (Hence  how  could  he  say 
such  a  thing,  which  was  objected  to  ?) 

Said  Rabhina  :  Was  it  not  said  of  R.  Mair  that  he  who  saw 
him  in  the  college  had  seen  one  uprooting  mountains  and  crush- 
ing them  (and  nevertheless  he  was  criticised  by  Resh  Lakish). 
Therefore  he  (Ula)  meant  thus :  Come  and  see  how  the  sages 
respected  each  other  (though  Resh  Lakish  was  such  a  genius,  he 
nevertheless,  in  speaking  of  R.  Mair,  named  him  holy  mouth).* 

MISHNA  //. :  If  one  says,  "  I  accept  as  a  judge  in  this  case 
your  father  or  my  father,"  or,  "  I  accept  certain  three  pasturers  to 
judge  our  case,"  according  to  R.  Mair  he  may  retract  thereafter, 
and  according  to  the  sages  he  must  not.  If  one  owes  a  note  to 
a  party,  and  the  latter  said  to  him,  "  Swear  to  me  by  your  Hfe, 
and  I  will  be  satisfied,"  according  to  R.  Mair  he  may  retract,  and 
according  to  the  sages  he  may  not. 

GEMARA :  Said  R.  Dimi  b.  R.  Na'hman  b.  R.  Joseph  :  It 
speaks  of  when  he  has  accepted  his  father  as  a  third  judge.  Even 
then  he  may  retract,  according  to  R.  Mair.  Said  R.  Jehudah  in 
the  name  of  Samuel  :  The  Tanaim  of  the  Mishna  differ  in  case 
the  creditor  said  to  the  debtor:  Your  or  my  father  may  judge 
this  case,  and  if  they  should  acquit  you,  I  will  renounce  my 
claim.  But  if  the  debtor  said  to  the  creditor :  I  trust  your 
father,  and  if  they  shall  hold  me  liable,  I  will  give  you  the 
money — all  agree  that  he  may  retract.  R.  Johanan,  however, 
said  that  they  differ  in  the  latter  case. 

The  schoolmen  propounded  a  question  :  Does  R.  Johanan 
mean  to  say  that  they  differ  only  in  the  latter  case,  but  in  the 
former,  "  I  will  renounce  my  claim,"  all  agree  that  no  retraction 
is  to  be  considered ;  or,  does  he  mean  to  say  that  they  differ  in 
both  cases  ?    Come  and  hear  what  Rabha  said  :    They  differ  only 

*  Here  is  a  repetition  from  Tract  Sabbath,  pp.  89-92,  which  is  already  translated. 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).  69 

if  he  said,  "  I  will  satisfy  your  claim,"  but  in  case  of  "  I  will  re- 
nounce my  claim,"  all  agree  that  he  cannot  retract.  Now  let  us 
see !  If  the  question  of  the  schoolmen  is  to  be  resolved  accord- 
ing to  Rabha's  decision  just  mentioned,  it  is  correct,  as  he  is  in 
accordance  with  R.  Johanan  ;  but  if  the  question  should  be  re- 
solved that  they  differ  in  case  of  renouncing,  etc.,  according  to 
whom  would  be  Rabha's  opinion  ?  Rabha  may  differ  with  both, 
and  declare  his  own  opinion.  R.  Aha  b.  Tahlipa  objected  to 
Rabha  from  the  latter  part  of  our  Mishna's  statement,  that  if  he 
told  him  to  swear  by  his  life,  according  to  R.  Mair  he  may  re- 
tract, etc.  Does  not  the  Mishna  speak  of  one  who  is  to  be 
acquitted  with  an  oath,  which  is  equal  to  "  I  renounce  my 
claim"?  Nay;  it  speaks  of  them  who  ought  to  swear  and  col- 
lect, which  is  equal  to  "  I  will  give  you."  But  this  was  stated 
already  in  the  first  part  ?  The  Mishna  teaches  both  cases,  one  in 
which  he  is  dependent  upon  himself  and  one  in  which  he  is  de- 
pendent on  the  mind  of  others.  And  both  are  needed  ;  as,  if 
there  were  stated  the  case  when  he  is  dependent  upon  others — 
e.g-.,  "  I  trust  your  father,"  etc. — one  might  say  that  only  in  such 
a  case  R.  Mair  permits  to  retract,  as  he  has  not  as  yet  made  up 
his  mind  to  pay,  thinking  that  probably  he  will  be  acquitted  ;  but 
when  he  depends  upon  himself — e.g.,  "  Swear  by  your  life,"  etc. — 
R.  Mair  also  admits  that  he  cannot  retract.  And  if  this  case 
only  were  stated,  one  might  say  that  in  such  a  case  only  the 
rabbis  hold  that  he  cannot  retract ;  but  in  case  he  depends  upon 
others,  they  agree  with  R.  Mair.     Therefore  both  are  needed. 

Resh  Lakish  said  :  The  Tanaim  of  the  Mishna  differ  in  case 
the  decision  was  not  yet  rendered  ;  but  after  it  was,  all  agree  that 
no  retraction  can  take  place.  R.  Johanan,  however,  maintains 
that  they  differ  in  the  latter  case. 

The  schoolmen  propounded  a  question  :  Does  R.  Johanan 
mean  to  state  that  they  differ  in  a  case  where  the  decision  was 
rendered,  but  in  case  the  decision  was  not  as  yet  rendered  all  agree 
that  a  retraction  can  take  place,  or  does  he  mean  to  say  that  they 
differ  in  both  cases  ?  Come  and  hear  what  Rabha  said  :  If  one 
has  accepted  a  relative  or  one  who  is  legally  disqualified  to  be  a 
judge,  if  before  the  decision,  his  retraction  holds  good  ;  but  if 
after,  no  retraction  is  to  be  considered.  Now  let  us  see!  If  the 
saying  of  R.  Johanan  is  to  be  explained  that  they  differ  when 
the  retraction  took  place  after  the  decision — but  if  before,  all 
agree  that  it  holds  good — Rabbi's  decision  is  correct,  as  it  is  in 
accordance  with   R.   Johanan's  explanation   and  in   accordance 


70  THE   BABYLONIAN   TALMUD. 

with  the  rabbis.  But  if  it  should  be  explained  that  they  differ 
also  in  case  it  was  before  the  decision,  according  to  whom  would 
be  Rabha's  decision  just  mentioned  ?  Infer  from  this  that  they 
differ  in  the  case  after  the  decision  ;  but  before,  all  agree  that 
a  retraction  holds  good. 

R.  Na'hman  b.  R.  Hisda  sent  a  message  to  R.  Na'hman  b. 
Jacob  :  Let  the  master  teach  us  in  which  case  the  Tanaim  of  our 
Mishna  differ — after  or  before  the  decision,  and  with  whom  the 
Halakha  prevails.  And  the  answer  was  :  After  the  decision, 
and  the  Halakha  prevails  with  the  sages.  R.  Ashi,  however, 
said  that  the  question  was :  Do  they  differ  in  case  he  said,  "  I 
will  renounce  my  claim,"  or  in  case  "  I  will  satisfy  your  claim  "? 
And  the  answer  was :  They  differ  in  the  latter  case  :  the 
Halakha  prevails  with  the  sages.  So  was  it  taught  in  the  College 
of  Sura.  In  the  College  of  Pumbeditha,  however,  it  was  taught : 
R.  Hanina  b.  Shlamiha  said  it  was  a  message  from  the  college 
to  Samuel :  Let  the  master  teach  us  how  is  the  law  if  the  retrac- 
tion took  place  before  the  decision,  but  they  have  made  the  cere- 
mony of  a  sudarium  ?  And  the  answer  was  that  nothing  could 
be  changed  in  such  a  case. 

MISHNA  ///. :  The  following  are  disqualified  to  be  witnesses  : 
Gamblers  (habitual  dice-players)  and  usurers,  and  those  who  play 
with  flying  doves  ;  and  the  merchants  who  do  business  with  the 
growth  of  the  Sabbatic  year.  Said  R  Simeon :  In  the  begin- 
ning they  were  named  the  gatherers  of  Sabbatic  fruit;  i.e.,  even 
those  who  had  gathered  the  fruit,  not  for  business,  were  disquali- 
fied. However,  since  the  demand  of  the  government  to  pay  duties 
increased,  the  gatherers  of  the  Sabbatic  fruit  were  absolved  from 
the  disqualification,  and  only  those  who  did  business  with.same 
were  disqualified.  Said  R.  Jehudah  :  Then  the  merchants  and  all 
the  other  persons  named  above  were  disqualified  only  when  they 
had  no  other  business  or  trade  than  this ;  but  if  they  had,  they 
were  qualified. 

GEMARA:  What  crime  is  there  in  dice-playing?  Said  Rami 
b.  Hama  :  Because  it  is  only  an  asmachtha,  which  does  not  give 
title.  R.  Shesheth,  however,  maintains  that  such  is  not  to  be 
considered  an  asinachtha  ;  but  they  are  disqualified  because  they 
do  not  occupy  themselves  with  the  welfare  of  the  world — and  the 
difference  between  them  is  if  they  had  another  business  besides. 
As  we  have  learned  in  our  Mishna,  according  to  R.  Jehudah,  if 
they  have  some  business  besides,  they  are  qualified.  Hence  we  see 
that  the  reason  of  the  disqualification  is  because  they  do  not  occupy 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  71 

l.hemselves  with  the  welfare  of  the  world — and  this  contradicts 
Rami  b.  Kama's  above  statement  ?  And  lest  one  say  that  R. 
Jehudah's  opinion  is  only  of  an  individual,  as  the  rabbis  differ 
with  him,  this  is  not  so,  as  Jehoshua  b.  Levi  said  that  in  every 
place  where  R.  Jehudah  says  "  this  is  only,"  or  if  he  says  "  pro- 
vided,"  he  comes  only  to  explain  the  meaning  of  the  sages,  but 
not  to  differ  with  them  ;  and  R.  Johanan  maintains  that  when  he 
says  "  this  is  only,"  he  comes  to  explain,  but  when  he  says  "  pro- 
vided," he  means  to  differ.  And  as  in  our  Mishna  he  expresses 
himself  "  this  is  only,"  all  agree  that  he  is  only  explaining. 
Hence  Rami  is  contradicted?  Do  you  contradict  one  man  with 
another  man  ?  Each  of  them  may  have  his  opinion.  Rami 
holds  that  they  do  differ,  and  Shesheth  that  they  do  not. 
Have  we  not  learned  in  the  following  Boraitha  that  it  does  not 
matter  if  he  has  another  business  besides;  he  is  nevertheless  dis- 
qualified ?  The  Boraitha  is  in  accordance  with  R.  Jehudah  in  the 
name  of  Tarphon  of  the  following  Boraitha:  R.  Jehudah  said  in 
the  name  of  R.  Tarphon,  concerning  a  Nazarite  (Tract  Nazir, 
34a),  that  wherever  there  is  any  doubt  he  is  not  deemed  a 
Nazarite.  And  the  same  is  in  our  case,  as  the  gambler  is  not 
certain  that  he  will  win  or  lose,  it  cannot  be  considered  a  real 
business,  but  robbery,  and  therefore  he  is  disqualified  even  when 
he  has  another  business. 

"  Usurers^  Said  Rabha  :  One  who  borrows  to  pay  usury  is 
also  disqualified.  But  does  not  our  Mishna  state  "  usurers,"  which 
means  the  lenders,  and  not  the  borrowers  ?  It  means  to  say  a 
loan  which  is  usurious.  There  were  two  witnesses  who  testified 
against  Bar  Benetus.  One  said :  In  my  presence  he  has  given 
money  at  usury ;  and  the  other  said :  He  has  loaned  to  me  at 
usury.  And  Rabha  disquahfied  b.  Benetus  from  being  a  witness. 
But  how  could  Rabha  take  into  consideration  the  testimony  of 
him  who  said  :  I  have  borrowed  from  him  at  usury  ?  Did  not 
Rabha  say  that  the  borrower  also  is  disqualified,  because,  as  soon 
as  he  has  borrowed  at  usury,  he  is  wicked  ;  and  the  Torah  says : 
Thou  shalt  not  bring  a  sinner  as  a  witness.  Rabha  is  in  accord- 
ance with  his  theory  elsewhere,  that  one  is  not  trusted  to  make 
himself  wicked.  (Hence  his  testimony  that  he  himself  has  bor- 
rowed at  usury  is  not  taken  into  consideration,  but  that  part, 
that  Benetus  has  loaned  to  him  at  usury,  was.)  There  was  a 
slaughterer  who  sold  illegal  meat  in  his  business,  and  R.  Na'hman 
disqualified  him.  And  he  let  his  hair  and  nails  grow  as  a  sign  of 
repentance  ;  and  Na'hman  was  about  to  remove  the  disqualifica- 


72  THE    BABYLONIAN    TALMUD. 

tion.  Said  Rabha  to  him :  Perhaps  he  is  deceiving  you.  But 
what  remedy  can  he  have  ?  As  R.  Aidi  b.  Abin  said  elsewhere  : 
For  him  who  is  suspected  of  selling  illegal  meat  there  is  no 
remedy,  unless  he  goes  to  a  place  where  he  is  not  known  and 
returns  a  valuable  lost  thing,  or  he  recognizes  the  illegality  of 
meat  in  his  business,  even  if  it  is  of  great  value. 

"  Flying  doves,"  etc.  What  does  this  mean  ?  In  this  college  it 
was  explained  :  If  your  dove  should  fly  farther  than  mine  (such 
and  such  a  distance),  you  shall  take  an  amount  of  money.  And 
Hama  b.  Oushia  said  that  it  means  an  apvco,  one  who  uses 
his  doves  to  entice  to  his  cot  doves  belonging  to  other  cots — and 
this  is  robbery.  But  to  him  who  maintains,  "  If  your  dove  shall 
fly  farther,"  etc.,  is  this  not  gambling?  (Why,  then,  is  it  re- 
peated ?)  The  Mishna  teaches  both  cases — depending  upon 
himself  and  depending  upon  his  dove  ;  as  if  depending  upon  him- 
self only  were  stated,  one  might  say  that,  because  he  was  sure  he 
would  win,  he  offered  such  an  amount,  and  he  has  not  made  up 
his  mind  to  pay  the  sum  willingly  in  case  of  a  loss,  and  therefore 
it  is  considered  an  asmachtha,  which  does  not  give  title.  But  in 
the  other  case,  where  he  is  dependent  upon  his  dove,  in  which  he 
is  not  sure,  and  has  nevertheless  offered  a  sum  of  money,  it  is  to 
be  supposed  that  he  made  up  his  mind  to  pay  willingly  in  any 
event,  and  therefore  it  is  not  considered  an  asmachtha.  And  if 
this  latter  case  were  stated,  one  might  say  that  he  did  so  prob- 
ably because  the  winning  of  the  race  depends  on  the  clapping, 
and  he  knew  better  how  to  clap  (at  the  pigeon  race) ;  but  when 
he  depends  upon  himself,  it  is  different.  Therefore  both  are 
stated. 

An  objection  was  raised  from  the  following :  Gamblers  are 
counted  those  who  play  with  dice ;  and  not  only  dice,  but  even 
with  the  shells  of  nuts  or  pomegranates.  And  when  is  their  re- 
pentance to  be  considered  ?  When  they  break  the  dice  and  re- 
nounce this  play  entirely,  so  that  they  do  not  play  even  for 
nothing.  And  usurers  are  counted  both  the  lender  and  the  bor- 
rower, and  their  repentance  is  to  be  considered  only  then  when 
they  destroy  their  documents  and  renounce  this  business  en- 
tirely, so  that  they  do  not  take  usury  even  from  a  heathen, 
from  whom  it  is  biblically  allowed.  And  among  those  who  play 
with  doves,  those  who  train  doves  to  fly  farther  are  counted  ;  and 
not  only  doves,  but  even  other  animals ;  and  their  renunciation 
is  considered  only  when  they  destroy  their  snares  and  renounce 
the  business  entirely,  so  that  they  do  not  catch  birds  even  in 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  73 

deserts.  Among  those  who  handle  Sabbatic  fruits  are  counted 
those  who  buy  or  sell,  and  their  renunciation  is  considered  only 
when  they  cease  to  do  so  in  the  next  Sabbatic  year.  Said  R. 
Na'hamia:  It  is  not  sufficient  that  they  cease  to  do  so,  but  they 
must  return  the  money  which  they  derived  from  the  sale  of  the 
fruit.  How  if  one  say  :  I,  so  and  so,  have  obtained  two  hundred 
zuz  from  the  Sabbatic  fruit,  and  I  present  them  for  charity?  Wc 
see,  then,  that  among  those  who  play  with  doves,  those  who  do  so 
with  other  animals  are  also  counted  ;  and  this  can  be  correct  only 
according  to  him  who  explains  our  Mishna  :  "  If  your  dove  should 
fly  farther  than  mine,"  as  the  same  can  be  done  with  other 
animals.  But  to  him  who  says  an  apvaj,  could  this  be  done 
with  other  animals  ?  Aye,  this  can  be  done  with  a  wild  ox  ;  and 
it  is  in  accordance  with  him  who  says  that  a  wild  ox  may  be 
counted  among  domesticated  animals. 

There  is  a  Boraitha :  There  was  added  to  the  disqualified 
witnesses  robbers  and  forcers  {i.e.,  those  who  take  things  by 
force,  although  they  pay  the  value  for  them).  But  is  not  a 
robber  disqualified  to  be  a  witness  biblically?  It  means  even 
those  who  do  not  return  a  found  thing  which  was  lost  by  a  deaf- 
mute  or  by  minors  (which  according  to  the  strict  law  is  not  to  be 
returned,  but  it  was  enacted  that  it  should  be  returned  for  the 
sake  of  peace — that  there  should  be  no  quarrel  with  their  rela- 
tives), and  as  this  does  not  occur  frequently,  they  were  not 
counted  among  the  disqualified.  Thereafter,  however,  they  were 
added,  as,  after  all,  they  take  possession  of  money  which  does 
not  belong  to  them.  And  the  same  is  the  case  with  the  forcers, 
who  were  not  placed  among  the  disqualified,  because  this  does 
not  happen  frequently.  Thereafter,  however,  as  the  rabbis  saw 
that  it  became  a  habit,  they  added  them  also. 

There  is  another  Boraitha  :  There  was  secondly  added  to  that 
category,  pasturers,  collectors  of  duty,  and  contractors  of  the 
government.  Pasturers  were  not  put  in  this  category  previously, 
because,  when  it  was  seen  that  they  led  their  animals  into  strange 
pastures,  it  was  only  occasionally ;  but  later,  when  it  was  seen 
that  they  did  it  intentionally,  they  were  also  added.  And  the 
same  is  the  case  with  the  collectors  of  duty  and  the  contractors, 
as  at  first  it  was  thought  that  they  took  only  what  belonged  to 
them  ;  but  after  investigation,  when  it  was  found  that  they  took 
much  more  than  they  ought,  they  were  added.  Said  Rabha  : 
The  pasturer  in  question — it  matters  not  if  he  is  a  pasturer  of 
small  cattle  or  of  large  ones.     Did  Rabha  indeed  say  so  ?     Did 


74  THE    BABYLONIAN   TALMUD. 

he  not  say  that  a  pasturer  of  small  cattle  is  disqualified  only  in 
Palestine,  but  not  outside  of  it,  and  pasturers  of  large  cattle  even 
in  Palestine  are  qualified  ?  This  was  taught  of  them  who  raise 
the  cattle  for  themselves ;  and  if  they  are  small  cattle,  they  are 
disqualified  because  it  was  forbidden  to  keep  small  cattle  in 
Palestine,  as  explained  elsewhere.  And  so  it  seems  to  be  as  the 
previous  Mishna  expresses,  "  three  pasturers,"  and  it  is  to  be 
assumed  for  witnesses.  Nay;  it  means  for  judges,  and  this  is  to 
be  understood  from  the  number  three.  As  if  for  witnesses,  for 
what  purpose  are  three  needed  ?  But  if  for  judges,  why  does  the 
Mishna  express  itself  "  pasturers" — let  it  state  three  laymen  who 
do  not  know  the  law  ?  It  means  to  say  that  even  pasturers  who 
spend  their  time  in  uninhabited  places  are  nevertheless  qualified 
to  judge  of  the  appointment  of  the  parties. 

R.  Jehudah  said  :  A  pasturer  of  whom  it  is  not  heard  that  he 
leads  his  cattle  into  strange  pasture  is  nevertheless  disqualified, 
but  a  duty  collector  of  whom  it  is  not  said  that  he  takes  more 
than  he  ought,  is  qualified. 

The  father  of  R.  Zera  was  a  collector  for  thirteen  years,  and 
when  the  governor  would  come  to  that  city  he  used  to  say  to  the 
scholars :  Go  and  hide  yourselves  in  the  houses,  so  that  the 
governor  shall  not  see  so  many  people,  or  he  will  demand  from 
the  city  more  taxes.  And  also  to  the  other  people,  when  he  saw 
them  crowded  in  the  streets,  he  used  to  say :  The  governor  is 
coming,  and  he  will  kill  the  father  in  presence  of  the  son,  and  the 
son  in  presence  of  his  father.  And  they  also  used  to  hide  them- 
selves. And  when  the  governor  came,  he  used  to  say  to  him : 
You  see  that  there  are  very  few  people  in  this  city.  From 
whom,  then,  shall  we  collect  so  much  duty  ?  When  he  departed, 
he  said  :  There  are  thirteen  maes  which  are  tied  in  the  sheet  of 
my  bed  5  take  and  return  them  to  so  and  so,  as  I  took  it  from  him 
for  duty  and  did  not  use  it. 

"  They  were  named  gatherers  of  Sabbatic  fruit,''  etc.  What 
does  this  mean  ?  Said  R.  Jehudah  thus :  Formerly  it  was  said 
the  gatherers  of  the  fruit  were  qualified,  but  the  merchants  were 
not.  But  when  it  was  seen  that  they  used  to  pay  the  poor  that 
they  should  gather  the  fruit  for  them  and  bring  it  to  their  houses, 
it  was  enacted  that  the  gatherers  as  well  as  the  merchants  were 
disqualified.  This  explanation,  however,  was  a  difficulty  to  the 
scholars  of  the  city  of  Rehaba  as  to  the  expression  of  our 
Mishna,  "  since  the  demand  of  the  government,"  and  according 
to  this  explanation  it  ought  to  be,  "  since  the  increase  of  buyers," 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  75 

and  therefore  they  explain  thus  :  Since  the  government  has  in- 
creased their  duties  [as  R.  Jani  announced,  "  Go  and  sow  in  the 
Sabbatic  year,  because  of  the  duties"],  it  was  enacted  that  the 
gatherers  were  qualified,  but  not  the  merchants. 

Hyie  b.  Zarssuqi  and  Simeon  b.  Jehuzdack  went  to  inter- 
calate a  year  in  Essia,  and  Resh  Lakish  met  them  and  said  :  I 
will  go  with  them  to  see  how  they  practise.  In  the  meantime 
he  saw  a  man  who  was  ploughing  in  the  Sabbatic  year,  and  he 
said  to  them  :  Is  this  man  a  priest,  who  is  suspected  of  doing 
work  in  the  Sabbatic  year  ?  And  they  answered  :  Probably  he  is 
hired  by  a  Gentile  to  do  so.  He  saw  again  a  man  who  was 
collecting  the  fluid  in  a  vineyard  and  putting  it  back  into  the 
bale.  And  he  said  again  :  Is  this  man  a  priest,  who  is  suspected, 
etc.  ?  And  they  answered  :  He  who  trims  vines  in  the  Sabbatic 
year  may  say :  I  need  the  twigs  to  make  a  bale  for  the  press. 
Rejoined  Resh  Lakish :  The  heart  knows  whether  it  is  done  for 
"  ekel"  (a  legitimate  purpose)  or  out  of  "  akalkaloth"  (perverse- 
ness).  And  they  rejoined  :  He  is  a  rebel.  When  they  came  to 
their  place,  they  ascended  to  the  attic  and  moved  the  steps  that 
he  (Resh  Lakish)  should  not  ascend  with  them.  The  latter  then 
came  to  R.  Johanan  and  questioned  him  :  Men  who  are  sus- 
pected of  transgressing  the  Sabbatic  year,  are  they  fit  to  establish 
a  leap  year  ?  After  deliberating,  however,  he  said :  It  presents 
no  dif^culty  to  me,  as  they  may  be  compared  with  the  three 
pasturers  mentioned  above  (p.  46),  and  the  rabbis  recommended 
them  to  do  so,  as  so  it  should  be  according  to  their  reckoning. 

Afterward,  however,  he  said  to  himself :  There  is  no  similarity, 
as,  concerning  the  three  pasturers  mentioned  thereafter,  the  rab- 
bis selected  the  right  number  needed  for  intercalation.  Here, 
however,  they  themselves  did  it,  and  they  are  only  a  society  of 
wicked  men  who  are  not  at  all  qualified  to  intercalate.  Said  R. 
Johanan  :  I  am  distressed  that  you  called  them  wicked.  When 
the  above-mentioned  rabbis  came  to  R.  Johanan,  complaining  that 
Resh  Lakish  called  them  pasturers  of  cattle  in  the  presence  of  R. 
Johanan  and  he  kept  silent,  he  answered  :  If  he  were  to  call  you 
pasturers  of  sheep,  what  could  I  do  to  him  ? 

*  Ula  said :  One's  thought  for  his  maintenance  injures  him  in  his 
study  of  the  law  {i.e.,  because  of  his  sorrow  it  remains  not  in  his 
mind  for  a  long  time,  and  he  forgets  it  easily).  As  it  is  written 
[Job,  V.  12]:  "Who  frustrateth  the  plans  of  the  crafty,  so  that 

*  The  Haggadic  passage  we  have  transferred  to  the  last  chapter  of  this  tract,  which 
is  all  Haggadah. 


76  THE   BABYLONIAN   TALMUD. 

their  hands  cannot  execute  their  well-devised  counsel,"  Said 
Rabba,  however :  If  he  occupies  himself  with  the  Torah  for  the 
sake  of  Heaven,  he  is  not  injured.  As  it  is  written  [Prov.  xix.  2i]  : 
"  There  are  many  thoughts  in  a  man's  heart ;  but  the  counsel  of 
the  Lord  alone  will  stand  firm  " — which  is  to  be  explained  :  A 
study  which  is  for  the  sake  of  Heaven,  no  matter  in  what  circum- 
stances one  is,  it  remains  forever.* 

"  Otily  then'''  etc.  Said  R.  Abuhu  in  the  name  of  R.  Elazar: 
The  Halakha  prevails  with  R.  Jehudah.  And  the  same  said  again 
in  the  name  of  the  same  authority :  All  the  persons  mentioned 
in  the  Mishna  and  in  the  Boraithas  are  disqualified  only  then 
when  their  crime  was  announced  by  the  court.  However,  con- 
cerning a  pasturer,  R.  Aha  and  Rabhina  differ.  According  to  one, 
even  concerning  him  announcement  is  needed ;  and  according  to 
the  other,  no  announcement  is  needed  for  his  disqualification. 
(Says  the  Gemara  :)  It  is  correct,  according  to  him  who  holds  that 
no  announcement  is  needed,  that  which  R.  Jehudah  said  above, 
that  a  pasturer  is  disqualified  even  if  we  are  not  aware  of  any 
crime ;  but  according  to  him  who  holds  that  even  a  pasturer 
must  be  announced,  why,  then,  Jehudah's  decision?  Because  he 
holds  that  the  court  has  to  announce  of  each  pasturer,  no  matter 
what  he  is,  that  he  is  disqualified.  There  was  a  document  for  a 
gift  which  was  signed  by  two  robbers,  and  R.  Papa  b.  Samuel 
was  about  to  make  it  valid  because  they  "w^ere  not  announced  by 
the  court.  Said  Rabha  to  him  :  When  to  a  robbery  which  is 
only  rabbinical  an  announcement  is  needed,  should  we  say  that 
the  same  is  needed  to  a  biblical  robbery  ? 

R.  Na'hman  said :  They  who  accept  charity  from  idolaters 
are  disqualified  to  be  witnesses,  provided  they  do  so  publicly,  but 
not  if  privately ;  and  even  publicly,  they  are  disqualified  only 
then  when  it  was  possible  for  them  to  do  same  privately  and 
they  do  not  care  to  disgrace  themselves  publicly ;  but  if  not, 
one  is  not  disqualified,  as  he  is  compelled  to  get  a  living.  The 
same  said  again :  He  who  is  suspected  of  adultery  is  qualified  to 
be  a  witness.  Said  R.  Shesheth  to  him :  Master,  answer  me. 
Should  a  man  who  has  forty  stripes  on  his  shoulders  f  be  quali- 

*  Rashi  gives  also  another  interpretation  to  this  passage  ;  viz.,  mental  resolution 
frequently  fails,  even  if  it  is  concerning  the  study  of  the  Torah — e.g.,  if  one  made  up 
his  mind  to  finish  such  and  such  a  tract  in  a  certain  time.  And  to  this  came  Rabba 
to  say,  if  it  was  for  the  sake  of  Heaven,  it  would  not  fail,  etc. 

f  Rashi  explains  this,  that  one  who  is  suspected  of  such  an  offence,  but  cannot 
be  punished  with  the  prescribed  punishment  because  there  were  no  legal  witnesses 


TRACT    SANHEDRIN  (SUPREME    COUNCIL).  77 

fied  ?  Said  Rabha :  R.  Na'hman  admits  that  concerning  a  woman 
he  is  disquaHfied  to  be  a  witness.  And  Rabhina,  according  to 
others  R.  Papa,  said  :  This  is  said  only  concerning  a  divorce,  but 
concerning  bringing  her  into  the  house  of  her  husband,  the 
suspicion  does  not  matter.  R.  Na'hman  said  again  :  If  one  has 
stolen  in  the  month  of  Nissan  at  the  harvest-time,  and  has  stolen 
again  in  the  month  of  Tishri,  he  is  not  named  a  thief  so  that  he 
should  be  disqualified,  provided  he  was  a  gardener  and  stole  a  thing 
of  little  value,  and  if  it  was  a  thing  which  could  be  consumed  with- 
out any  preparation.  The  gardener  of  R.  Zebid  stole  a  kab  of 
barley,  and  R.  Zebid  disqualified  him.  And  also  another  one 
stole  a  bunch  of  dates,  and  was  also  disqualified. 

There  were  undertakers  who  had  buried  a  corpse  on  the  first 
day  of  Pentecost,  and  R.  Papa  put  them  under  the  ban  and  dis- 
qualified them  to  be  witnesses.  However,  Huna  b.  R.  Jehoshua 
qualified  them,  and  to  the  question  of  R.  Papa :  Are  they  not 
wicked  ?  he  answered  :  They  thought  they  were  doing  a  meri- 
torious act.  But  were  they  not  put  under  the  ban  for  this  trans- 
gression, and  nevertheless  did  it  again  ?  They  thought  that  the 
putting  under  the  ban  was  only  a  kind  of  atonement  imposed  by 
the  rabbis  for  violating  the  holiday.  However,  the  burial  act 
itself  is  meritorious,  though  they  will  have  to  be  under  the  ban 
for  a  few  days  for  violation  of  a  holiday. 

An  apostate  who  eats  illegal  meat,  which  is  identical  with 
carcasses,  because  it  is  cheaper,  all  agree  that  he  is  disqualified. 
But  if  he  does  this  not  because  it  is  cheaper,  but  for  the  purpose 
of  angering  his  former  brothers  in  faith,*  according  to  Abayi  he 
is  disqualified  and  according  to  Rabha  he  is  not.  The  reason  of 
Abayi  is  because  he  is  wicked,  and  the  Scripture  reads  plainly; 
"  Thou  shalt  not  bring  a  sinner  as  a  witness."  Rabha's  reason, 
however,  is  that  it  speaks  of  one  wicked  in  money  matters  only. 
An  objection  was  raised  from  the  following:  "The  meaning  of 
the  Scripture  concerning  the  testimony  of  a  sinner  means  one 
who  is  wicked  in  money  matters ;  as,  for  instance,  robbers  and 
perjurers.  No  matter  if  the  oath  was  a  vain  one  {e.g.,  if  one  has 
sworn  that  a  stone  is  a  stone),  or  if  the  oath  was  a  false  one  con- 
cerning money  matters."    Hence  we  see  that  even  a  vain  swearer 

or  he  was  not  warned,  has  nevertheless  been  punished  with  stripes,  as  so  it  is  stated 
(Tract  Kidushin,  8ib). 

*  Our  explanation  in  the  case  of  angering  may  be  new,  as  we  are  not  in  accord 
with  other  commentators.  However,  it  seems  to  us  that  this  is  the  correct  interpre- 
tation, as  to  which  we  challenge  criticism. 


78  THE    BABYLONIAN    TALMUD. 

is  also  disqualified?  By  the  expression  "vain  swearer"  is  not 
meant  as  explained,  but  that  he  has  sworn  in  vain  concerning 
money  matters — e.g.,  A  owes  money  to  B,  which  was  not  neces- 
sary at  all,  as  A  has  never  denied  it.  An  objection  was  raised 
from  the  following  :  "  Thou  shalt  not  bring  a  sinner  as  a  witness," 
means  one  wicked  in  robbery — namely,  robbers  and  usurers. 
Hence  this  Boraitha  contradicts  Abayi's  statement.  The  objec- 
tion remains. 

Shall  we  assume  that  the  above  Amoraim  differ  in  the  same 
respect  as  the  Tanaim  of  the  following  :  A  collusive  witness  is 
disqualified  in  all  law  cases.  So  is  the  decree  of  R.  Mair.  R. 
Jose,  however,  maintains :  Provided  he  was  made  collusive  in  a 
case  of  capital  punishment ;  but  if  in  money  matters,  he  is  still 
qualified  to  be  a  witness  in  criminal  cases?  Now,  shall  we  say 
that  Abayi  holds  with  R.  Mair,  who  maintains  that  even  from  a 
lenient  we  disqualify  to  a  rigorous  one,  and  Rabha  holds  with  R. 
Jose,  who  maintains  that  only  from  a  rigorous  case  we  disqualify 
even  to  a  lenient  one,  but  from  lenient  to  rigorous  we  do  not  ? 
Nay !  In  accordance  with  R.  Jose's  theory,  they  do  not  differ. 
But  the  point  of  their  difference  is  concerning  R.  Mair's  theory, 
as  Abayi  holds  with  him,  and  Rabha  maintains  that  even  R. 
Mair  said  so  only  concerning  a  collusive  witness  in  money  mat- 
ters, which  is  both  wicked  against  man  and  wicked  against 
heaven ;  but  in  our  case,  where  the  wickedness  is  in  heavenly 
things  only,  even  R.  Mair  admits  that  he  is  qualified  to  be  a  wit- 
ness in  money  matters.  The  Halakha,  however,  prevails  with 
Abayi.  But  was  he  not  objected  to?  The  Boraitha  which  con- 
tradicts Abayi  is  in  accordance  with  R.  Jose.  But  even  then,  is 
it  not  a  rule,  when  R.  Mair  differs  with  R.  Jose,  that  the  Halakha 
prevails  with  the  latter?  In  this  case  it  was  different,  as  the  edi- 
tor of  the  Mishnayoth  taught  an  anonymous  Mishna  in  accord- 
ance with  R.  Mair's  opinion.  And  where  is  it  ?  This  was 
explained  in  the  following  case :  Bar  Hama  had  slain  a  man  and 
the  Exilarch  told  Aba  b.  Jacob  to  investigate  the  case ;  and  if 
he  really  slew  the  man,  they  should  make  the  murderer  blind. 
(Since  the  Temple  was  destroyed,  capital  punishments  were 
abolished  by  Israel,  and  therefore  to  make  a  man  blind  was  to 
make  him  dead  to  the  world.)  And  two  witnesses  came  to  testify 
that  he  surely  killed  the  man.  The  defendant,  however,  brought 
two  witnesses  who  testified  against  one  of  the  witnesses.  One  of 
them  said :  In  my  presence  this  man  stole  a  kab  of  barley ;  and 
the  other  said :  In  my  presence  he  stole  the  handle  of  a  borer. 


TRACT   SANHEDRIN   (SUPREME   COUNCIL).  yg 

And  the  Exilarch  said  to  him  :  You  wish  to  disquahfy  this  man 
to  be  a  witness  because  of  R.  Mair's  theory,  but  I  know  of  the 
rule  that  the  Halakha  prevails  with  R,  Jose  when  he  differs  with 
R.  Mair ;  and  according  to  R.  Jose,  if  one  was  collusive  in  money 
matters,  he  is  still  qualified  in  criminal  cases.  Said  R.  Papa  to 
him :  This  is  so  in  other  cases ;  but  in  this  case  it  is  different,  as 
there  is  an  anonymous  Mishna  in  accordance  with  R.  Mair.  But 
which  Mishna  is  it  ?  Shall  we  assume  it  to  be  that  which  stated 
that  he  who  is  competent  to  judge  criminal  cases  is  competent 
for  civil  cases  also,  which  cannot  be  in  accordance  with  R.  Jose,  as, 
according  to  his  theory,  there  is  a  witness  who  was  made  collu- 
sive in  civil  cases  and  is  still  competent  in  criminal  cases?  Hence 
it  is  in  accordance  with  R.  Mair.  But  perhaps  the  cited  Mishna 
does  not  speak  about  collusive  witnesses,  but  of  such  as  are 
incompetent  to  be  witnesses  because  of  their  family.  Therefore 
we  must  say  that  he  means  our  Mishna  which  states  the  follow- 
ing are  disqualified  for  witnesses :  Players  with  dice,  etc. ;  and  a 
Boraitha  adds :  And  also  slaves.  This  is  the  rule  in  all  cases  in 
which  women  are  not  allowed  to  be  witnesses — they  also  are  dis- 
qualified. And  this  cannot  be  in  accordance  with  R.  Jose,  as  he 
holds  that  they  are  qualified  to  be  witnesses  in  criminal  cases,  for 
which  women  are  disqualified.  Hence  it  is  in  accordance  with  R. 
Mair.  B.  Hama  then  arose  and  kissed  him,  and  freed  him  from 
paying  duties  all  his  life. 

MISHNA  IV.:  The  following  are  counted  relatives  who 
may  not  be  witnesses :  Brothers,  brothers  of  father  or  mother, 
brothers-in-law,  uncles  by  marriage  from  father's  or  mother's  side, 
a  stepfather,  a  father-in-law,  the  husband  of  one's  wife's  sister, 
they  and  their  sons  and  their  sons-in-law,  and  also  a  stepson  himself 
— but  the  latter's  children  are  qualified.  Said  R.  Jose  :  This  Mishna 
was  changed  by  R.  Aqiba.  The  ancient  Mishna,  however,  was 
thus :  One's  uncle,  one's  first-cousin,  and  all  those  who  are  com- 
petent to  be  one's  heirs  and  also  all  one's  relatives  at  that  time  ; 
but  if  they  were  relatives  and  thereafter  became  estranged,  they 
are  qualified.  R.  Jehudah,  however,  maintains  that  even  if  a 
daughter  dies  and  leaves  children,  her  husband  is  still  considered 
a  relative.  An  intimate  friend,  as  well  as  a  pronounced  enemy, 
is  also  disqualified.  Who  is  considered  an  intimate  friend?  The 
groomsman.  And  who  is  considered  a  pronounced  enemy  ?  The 
one  who  has  not  spoken  to  him  for  three  days  because  of  ani- 
mosity. And  the  sages  answered  R.  Jehudah  :  The  children  of 
Israel  are  not  suspected  of  witnessing  falsely  because  of  animosity. 


8o  THE    BABYLONIAN    TALMUD. 

GEMARA:  Whence  is  this  deduced?  From  that  which  the 
rabbis  taught.  It  is  written  [Deut.  xxiv.  i6]  :  "  Fathers  shall  not 
be  put  to  death  for  the  children  .  .  .  for  his  own  sin,"  etc. 
To  what  end  is  this  written  ?  If  only  to  teach  the  meaning  of  it 
literally,  it  would  not  be  necessary,  as  the  end  of  the  verse  reads, 
"  for  his  own  sin  shall  every  man  be  put  to  death."  It  must 
therefore  be  interpreted,  fathers  should  not  die  by  the  witnessing 
of  their  children,  and  vice  versa.  From  this  is  deduced  fathers 
by  sons,  and  vice  versa ;  and  so  much  the  more  fathers  who  are 
brothers  are  incompetent  to  testify  for  each  other.  But  whence 
do  we  know  that  grandsons  (cousins)  are  also  incompetent  to  tes- 
tify for  each  other?  It  should  read,  "parents  shall  not  die 
because  of  their  son."  And  why  "  sons  "  in  the  plural?  To  teach 
that  their  sons  are  not  competent  to  testify  for  each  other.  But 
whence  do  we  know  that  two  relatives  are  not  qualified  to  testify 
in  one  case  even  for  a  stranger?  It  should  read  in  the  singular, 
"  and  a  son  for  his  parents."  And  why  in  the  plural,  "  and  sons  "  ? 
To  teach  that  two  sons  are  incompetent  to  testify  in  one  case, 
even  for  a  stranger.  But  from  this  is  deduced  the  relatives  from 
the  father's  side  only.  Whence,  however,  do  we  know  that  the 
same  is  the  case  with  the  relatives  from  the  mother's  side  ?  From 
the  repetition  of  the  word  "  fathers  "  in  the  same  verse.  And  as 
it  was  not  necessary  for  the  relatives  on  the  father's  side,  apply  it 
to  the  relatives  on  the  mother's  side.  But  this  verse  speaks  of 
accusation.  Whence  do  we  know  that  the  same  is  the  case  con- 
cerning advantage  ?  From  the  repetition  of  the  words,  "  shall  not 
die,"  which  were  not  necessary  in  the  case  of  accusation.  Apply 
it,  therefore,  to  cases  of  advantage.  All  this,  however,  is  said 
concerning  criminal  cases.  But  whence  do  we  know  that  it  is  the 
same  with  civil  cases?  Hence  it  reads  [Lev.  xxiv.  22]:  "One 
manner  of  judicial  law,"  etc.,  meaning  that  all  cases  must  be 
judged  equally. 

Rabh  said :  My  father's  brother  shall  not  witness  in  my 
cases;  he,  his  son,  and  his  son-in-law.  And  similarly,  I,  for  my 
part,  will  not  witness  in  his  cases,  neither  my  son  nor  my  son-in- 
law.  But  why  ?  Is  not  one's  son  a  grandnephew,  who  is  a  third 
to  a  father's  brother,  and  our  Mishna  teaches  that  only  a  cousin 
is  not  competent,  who  is  second  to  the  party,  but  not  a  second- 
cousin,  who  is  third  to  the  party  ?  The  expression  in  our  Mishna, 
"  his  son-in-law,"  means  the  son-in-law  of  his  son,  who  is  already 
a  third.  But  if  so,  why  does  it  not  teach  "  the  son  of  his  son  " 
(grandson)  ?    Incidentally,  the  Mishna  teaches  us  that  the  husband 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  8i 

is  equal  to  his  wife.  But  if  so,  according  to  whom  would  be  the 
following  Boraitha,  taught  by  R.  Hyya :  Eight  fathers,  which 
counts  twenty-four,  including  their  sons  and  sons-in-law  {i.e., 
father  and  brother,  two  grandfathers,  and  four  great-grandfathers 
— two  from  each  side — and  eight  sons  and  eight  sons-in-law)? 
And  if  our  Mishna  means  the  son's  son-in-law,  then  it  ought  to 
be  thirty-two,  viz. :  eight  fathers,  eight  sons,  eight  sons-in-law,  and 
eight  grandsons.  Therefore  we  must  say  that  our  Mishna  means 
his  son-in-law.  And  why  does  Rabh  name  him  the  son-in-law  of 
his  son?  Because  he  is  not  a  descendant  from  him,  but  came 
from  strangers,  he  is  considered  not  of  the  second  generation  but 
as  of  the  third.  But,  after  all,  according  to  Rabh's  saying  it  is  a 
third  to  a  second-cousin,  and  we  are  aware  that  Rabh  holds  that 
such  is  qualified  to  be  a  witness  ?  Therefore  we  must  say  that 
Rabh  holds  with  R.  Elazar,  who  says  in  the  following  Boraitha : 
Even  as  my  father's  brother  cannot  be  a  witness  for  me,  neither 
his  son  nor  his  son-in-law,  the  same  is  the  case  with  the  son  of 
my  father's  brother  and  with  his  son  and  son-in-law.  Still,  this 
cannot  serve  as  an  answer  to  the  objection  that  Rabh  himself  has 
qualified  a  third  to  a  second-cousin  ?  Say,  Rabh  holds  with  R. 
Elazar  only  concerning  his  son,  but  differs  with  him  concerning 
the  son  of  his  father's  brother.  And  the  reason  of  Rabh's  theory 
is  because  it  reads  :  "  Fathers  shall  not  die  because  of  their  sons ; 
and  sons,"  etc. — which  means  the  addition  of  one  more  genera- 
tion. And  the  reason  of  R.  Elazar  is :  "  For  their  children " 
means  that  the  incompetence  of  the  fathers  shall  extend  to  their 
children  also. 

R.  Na'hman  said  :  The  brother  of  my  mother-in-law  cannot  be 
a  witness  for  me,  and  the  same  is  the  case  with  his  son,  and  also 
with  the  son  of  the  sister  of  my  mother-in-law.  And  there  is  also  a 
Boraitha  similar  to  this,  viz. :  The  husband  of  one's  sister,  also 
the  husband  of  the  sister  of  one's  father  and  the  husband  of  the 
sister  of  one's  mother,  their  sons  and  their  sons-in-law,  are  also 
excluded  from  being  witnesses.  Said  R.  Ashi :  While  we  were 
with  Ula  we  questioned  him :  How  is  it  concerning  the  brother  of 
one's  father-in-law  and  his  son,  and  also  concerning  the  son  of 
the  sister  of  his  father-in-law  ?  And  he  answered  :  This  we  have 
learned  in  a  Boraitha  :  One's  brothers,  the  brother  of  one's  father 
and  of  one's  mother,  they,  their  sons  and  their  sons-in-law — all  are 
incompetent. 

It  happened  that  Rabh  was  going  to  buy  parchments,  and  he 
was  questioned  :  May  one  be  a  witness  to  his  stepson's  wife  ?   The 


82  THE    BABYLONIAN    TALMUD. 

answer  to  this  question  was,  according  to  the  College  of  Sura,  that 
the  husband  is  the  same  as  his  wife ;  and  according  to  the  College 
of  Pumbeditha,  the  answer  was  that  the  wife  is  the  same  as  her 
husband — which  means  that  he  is  considered  as  if  he  were  really 
her  father-in-law.  And  as  Huna  in  the  name  of  Rabh  said: 
Whence  do  we  know  that  the  woman  is  considered  to  be  the  same 
as  her  husband?  From  [Lev.  xviii.  14]  :  "  She  is  thy  aunt."  Is 
she  indeed  his  aunt  ?  Is  she  not  the  wife  of  his  uncle  only?  We 
see,  then,  that  the  wife  is  considered  the  same  as  her  husband. 

"A  stepfather  .  .  .  Ms  son  and  son-in-law!'  Is  not  his 
son  a  brother  of  the  party  from  the  mother's  side?  Said  R.  Jere- 
miah:  It  means  the  brother  of  his  brother — e.g.,  the  son  of  his 
stepfather  from  another  wife.  R.  Hisda,  however,  qualified  such 
a  person.  When  he  was  questioned  :  Was  he  not  aware  of  Jere- 
miah's explanation  of  our  Mishna  just  mentioned  ?  He  answered  : 
I  do  not  care  for  it.  But  if  so,  it  is  his  brother.  The  Mishna 
teaches  concerning  a  brother  from  the  father's  side,  and  also 
from  the  mother's  side.  R.  Hisda  said  the  father  of  the  groom 
and  the  father  of  the  bride  may  be  witnesses  for  each  other,  as 
their  relation  is  similar  to  the  relation  of  a  cork  to  a  barrel  only, 
which  cannot  be  counted  relationship.  Rabba  b.  b.  Hana  said  : 
One  may  be  a  witness  for  his  betrothed,  but  not  for  his  wife. 
Said  Rabhina :  Provided  he  testified  against  her ;  but  if  his  testi- 
mony is  in  her  behalf,  he  is  not  trusted.  In  reality,  however, 
(says  the  Gemara,)  there  is  no  difference :  One  is  not  trusted  in 
any  case,  as  the  reason  concerning  witnesses  is  that  one  is  too 
near  in  mind  to  his  relatives ;  and  as  she  is  betrothed  to  him,  he 
is  not  fit  to  be  a  witness  in  any  case. 

The  rabbis  taught :  One's  stepson  only.  R.  Jose  says :  The 
husband  of  one's  wife's  sister  only.  And  there  is  another  Bo- 
raitha :  The  husband  of  one's  wife's  sister  only.  R.  Jehudah  says  : 
One's  stepson  only.  How  is  this  to  be  understood  ?  Shall  we  as- 
sume that  the  Tana  of  the  first  Boraitha  has  mentioned  only  the 
stepfather,  but  that  the  case  is  the  same  with  the  husband  of  one's 
wife's  sister?  And  R.  Jose  with  his  statement  also  does  not  mean 
to  differ,  but  he  mentioned  the  latter,  and  the  same  is  it  also  with 
the  former.  Then  our  Mishna,  which  states,  "  the  husband  of 
one's  wife's  sister,  he,  his  son,  and  his  son-in-law  are  excluded," 
would  be  neither  in  accordance  with  R.  Jedudah  nor  with  R.  Jose. 
Or  does  the  Boraitha  mean  to  say  that  regarding  a  stepfather  only 
is  he  excluded,  but  concerning  the  husband  of  the  wife's  sister,  he, 
with  his  sons,  etc.,  is  excluded  ;  and  R.  Jose  differs,  as,  according 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  83 

to  his  opinion,  the  latter  only  is  excluded,  but  not  his  sons,  etc. ; 
but  a  stepfather,  with  his  sons,  etc.,  is  excluded  ?  Then  the 
Boraitha  of  R.  Hyya,  mentioned  above,  which  states  that  there 
are  twenty-four,  would  be  neither  in  accord  with  R.  Jose  nor 
with  R.  Jehudah.  Therefore  we  must  say  that  the  Boraitha  is  to 
be  explained  thus :  The  stepfather  only  is  to  be  excluded,  but 
concerning  the  husband  of  his  wife's  sister,  his  children  are  also 
excluded.  And  R.  Jose  came  to  teach  that  even  concerning  the 
latter  he  only  is  excluded,  but  not  his  children,  and  so  much  the 
more  a  stepfather.  And  then  our  Mishna  is  in  accordance  with 
R.  Jehudah  and  the  Boraitha  in  accordance  with  R.  Jose.  Said 
R.  Jehudah  in  the  name  of  Samuel :  The  Halakha  prevails 
with  R.  Jose. 

There  was  a  deed  of  gift  which  was  signed  by  two  brothers-in 
law — i.e.,  two  husbands  of  two  sisters — and  R.  Joseph  was  about 
to  make  it  valid,  based  upon  the  decision  of  Samuel  that  the 
Halakha  prevails  with  R.  Jose.  Said  Abayi  to  him  :  Whence  do 
you  know  that  Samuel  meant  R.  Jose  of  our  Mishna,  who  quali- 
fied the  husband  of  one's  wife's  sister?  Perhaps  he  meant  R. 
Jose  of  the  Boraitha  who  disqualified  him.  This  could  not  be 
supposed,  as  Samuel  said,  e.g.,  I  and  Pinchas,  who  are  brothers 
and  brothers-in-law — but  if  only  brothers-in-law,  they  are  qualified. 
And  Abayi  rejoined :  It  is  still  uncertain,  as  perhaps  Samuel 
meant  to  say :  Because  Pinchas  was  the  husband  of  his  wife's 
sister.  Therefore  said  R.  Joseph  to  the  beneficiary  :  Acquire  title 
to  this  gift  by  the  testimony  of  the  witnesses  who  were  present 
when  the  gift  was  transferred  to  you,  in  accordance  with  R.  Aba's 
decision.  Said  Abayi  again :  But  did  not  Aba  admit  that  if 
there  was  a  forgery  in  the  deed  while  writing,  it  is  invalid  even 
in  the  latter  case?  And  R.  Joseph  said  to  the  beneficiary:  Go! 
you  see  people  do  not  allow  me  to  transfer  it  to  you. 

"  R.  Jehudah  said^  etc.  Said  Thn'hum  in  the  name  of  Tabla 
in  the  name  of  Bruna,  quoting  Rabha  :  The  Halakha  prevails  with 
R.  Jehudah.  Rabha,  however,  in  the  name  of  R.  Na'hman,  and 
also  Rabba  b.  b.  Hana  in  the  name  of  R.  Johanan,  said  :  The 
Halakha  does  not  prevail  with  him  :  There  were  some  others  who 
taught  the  saying  of  Rabba  with  regard  to  the  following:  Thus 
lectured  R.  Jose  the  Galilean  :  It  is  written  [Deut.  xvii.  9]  : 
"And  to  the  judge  that  may  be  in  those  days."  Was  it  neces- 
sary to  state  thus?  Can  it  then  be  supposed  that  one  should 
go  to  a  judge  that  is  not  in  his  days?  Therefore  it  is  to  be  ex- 
plained that  it  means  that  the  judge  was  previously  a  relative  of 


84  THE    BABYLONIAN    TALMUD. 

his,  and  that  thereafter  he  became  estranged.  And  to  this  said 
Rabba,  etc.,  the  Halakha  prevails  with  R.  Jose  the  GaHlean. 

The  sons  of  Mar  Uqba's  father-in-law  were  relatives,  and 
became  thereafter  estranged.  And  they  had  a  case,  and  came 
with  it  to  his  court.  He,  however,  exclaimed  :  I  am  disqualified 
from  being  your  judge.  They  then  rejoined  :  Is  it  because  you 
hold  with  R.  Jehudah  ?  We  will  bring  you  a  letter  from  Palestine 
stating  that  the  Halakha  does  not  prevail  with  him.  Rejoined 
he :  I  myself  know  that  I  am  not  attached  to  you  with  wax,  and 
my  saying  that  I  am  disqualified  to  judge  you  is  because  I  know 
that  your  custom  is  not  to  listen  to  my  decision, 

^^  A  friend  is  a  groomsman ^  But  how  long  shall  this  friend- 
ship hold  ?  R.  Aba  in  the  name  of  R.  Jeremiah,  quoting  Rabh, 
said  :  All  the  seven  days  of  the  wedding.  The  rabbis,  however, 
in  the  name  of  Rabha  said  that  after  the  first  day  the  friendship 
is  no  longer  considered,  and  he  is  qualified. 

''An  enemy,''  etc.  The  rabbis  taught :  It  reads  [Num.  xxxv. 
23]  :  "  He  was  not  his  enemy  and  did  not  seek  his  harm  " — which 
means,  he  who  is  not  one's  enemy  may  be  a  witness  and  he  who 
does  not  seek  one's  harm  may  be  his  judge.  This  is  concerning 
an  enemy.  And  whence  do  we  know  that  the  same  is  the  case 
with  a  friend  ?  Read,  then,  "  and  he  is  not  his  enemy  and  not 
his  friend  " — and  then  he  may  be  a  witness ;  and  if  he  does  not 
seek  his  harm  and  not  his  welfare,  then  he  may  be  his  judge. 
But  is  it,  then,  written  a  friend  ?  This  is  common  sense.  Why 
not  an  enemy  ?  Because  his  mind  is  far  from  doing  any  good  to 
him  ;  and  the  same  is  it  with  a  friend,  whose  mind  is  near  to  do 
all  that  he  can  in  his  behalf.  The  rabbis,  however,  infer  from  this 
two  things :  one  concerning  a  judge  and  the  other  that  which  we 
have  learned  in  the  following  Boraitha :  R.  Jose  b.  R.  Jehudah 
said :  Fi-om  the  verse,  "  he  is  not  his  enemy  and  does  not  seek 
his  harm,"  is  to  be  inferred  that  if  two  scholars  have  animosity 
toward  each  other  they  must  not  judge  in  a  case  together. 

MISHNA  V. :  How  were  the  witnesses  examined  ?  They 
were  brought  into  separate  chambers  and  were  frightened  to  tell 
the  truth.  And  then  all  except  the  eldest  were  told  to  go  out, 
and  he  questioned  :  How  do  you  know  that  A  owes  money  to  B  ? 
And  if  his  answer  was  :  "  Because  A  himself  told  me  that  he  owes 
him,"  or,  "  C  told  me  that  such  was  the  case,"  he  said  nothing, 
unless  he  testified  that,  in  the  presence  of  myself  and  my  colleague, 
A  confessed  that  he  owed  to  B  two  hundred  zuz  :  and  then  the 
second  witness  is  brought  in  and  they  examine  him,  and  if  both 


TRACT    SANHEDRIM    (SUPREME    COUNCIL).  85 

testimonies  correspond  the  court  discusses  about  the  case.  If 
two  of  the  judges  acquit  and  one  makes  him  Hable,  he  is  acquitted  ; 
and  if  vice  versa,  he  is  Hable.  If,  however,  one  acquits  and  the 
other  makes  him  hable,  and  the  third  one  says,  "  I  don't  know," 
then  judges  must  be  added.  And  the  same  is  the  case  if  there 
were  five,  and  two  of  them  were  against  two,  while  the  fifth  was 
doubtful.  After  the  conclusion  of  the  judges  is  arrived  at,  they 
are  told  to  enter,  and  the  eldest  of  the  judges  announces,  "  You, 
R,  are  acquitted,"  or,  "  You,  A,  are  liable."  And  whence  do  we 
know  that  one  of  the  judges  must  not  say :  I  was  in  favor  of  the 
defendant,  but  my  colleagues  were  against,  and  I  could  not  help 
it,  as  they  were  the  majority.  As  to  this  it  reads  [Lev.  xix.  16]  : 
"  Thou  shalt  not  go  up  and  down  as  a  talebearer  among  thy 
people";  and  it  reads  also  [Prov.  xi.  13]:  "He  that  walketh 
about  as  a  talebearer  revealeth  secrets." 

GEMARA  :  How  were  the  witnesses  frightened  ?  Said  R. 
Jehudah.  Thus  [ibid.  xxv.  14]  :  "  Like  clouds  and  wind  without 
rain,  so  is  a  man  that  vaunteth  falsely  of  a  gift  "  (i.e.,  that  because 
of  false  witnesses,  even  though  it  is  cloudy,  the  rain  is  withheld), 
Said  Rabha:  This  is  no  frightening,  as  they  may  think  what 
people  say,  even  seven  years  of  famine  do  not  pass  the  gate  of 
a  specialist.  "Therefore,"  said  he,  "it  was  said  to  them  [ibid., 
ibid.  18]  :  'A  battle-axe,  and  a  sword,  and  a  sharpened  arrow  is  a 
man  that  testifieth  as  a  false  witness  against  his  neighbor.'  "  And 
R.  Ashi  maintains  that  even  this  is  not  sufficient,  as  they  may 
think,  even  in  time  of  a  pest  one  does  not  die  before  his  time. 
Therefore  said  he  :  I  was  told  by  Nathan  b.  Mar  Zutra  that  they 
were  frightened  that  false  witnesses  were  disgraced  even  in  the 
eyes  of  those  who  hired  them.  As  it  reads  [I  Kings,  xxi.  10] : 
"  And  set  two  men,  sons  of  Belial,  opposite  to  him,  and  let  them 
bear  false  witness  against  him,"  etc. 

'''A '  himself  told  me,"  etc.  This  is  a  support  to  R.  Jehudah, 
who  said  in  the  name  of  Rabh :  If  one  wants  the  case  to  be 
recognized  by  the  court,  he  must  insist  that  the  debtor  shall  say  : 
Ye  shall  be  my  witnesses.  And  so  also  was  taught  by  Hyya  b. 
Aba  in  the  name  of  R.  Johanan.  And  there  is  also  a  Boraitha 
as  follows  :  (A  said  to  B :)  "I  have  a  mana  with  you,"  and  he 
answered,  "Yea."  On  the  morrow  A  asked  him,  "Give  it  to 
me,"  and  B  said  it  was  only  a  joke,  he  is  free.  And  not  this  only, 
but  even  if  A  has  had  two  witnesses  hidden  under  a  fence  (so 
that  B  could  not  see  them),  and  questioned  him  :  "  Have  I  a 
mana  with  you  ?  "  and  B  answered,  "  Yea."    And  to  the  question, 


86  THE    BABYLONIAN    TALMUD. 

"Would  you  like  to  confess  before  witnesses  ?  "  B  answers,  "I 
am  afraid,  if  I  do  so,  you  will  summon  me  to  the  court "  ;  and 
on  the  morrow  A  asks  B  to  give  him  the  mana,  and  his  answer 
is,  "  It  was  only  a  joke,"  he  is  not  liable.  However,  one  must  not 
defend  a  seducer.  A  seducer  !  Who  has  mentioned  this  term  ? 
The  Boraitha  is  not  complete,  and  should  read  thus :  If,  how- 
ever, B  does  not  defend  himself,  the  court  must  not  question  him  ; 
perhaps  it  was  a  joke.  But  in  criminal  cases,  a  similar  question 
must  be  asked  by  the  court,  although  he  has  not  so  defended 
himself,  except  in  the  case  of  a  seducer.  And  why  ?  Said  R. 
Hama  b.  Hanina :  From  the  lecture  of  R.  Hyya  b.  Aba  I  under- 
stand that  it  is  because  it  reads  [Deut.  xiii.  9]  :  "  Nor  shall  thy 
eye  look  with  pity  on  him,  nor  shalt  thou  conceal  it  for  him." 

Said  Abayi  :  All  that  is  said  above  is,  provided  the  defendant 
claims,  "  It  was  a  joke  "  ;  but  if  he  claims,  "  I  have  never  con- 
fessed," he  must  be  considered  a  liar  and  is  liable.  R.  Papa  b. 
R.  Aha  b.  Ada,  however,  maintains  :  In  the  case  of  a  joke,  people 
do  not  remember  their  confession,  and  therefore  even  such  a 
claim  must  be  investigated. 

There  was  one  who  had  hidden  witnesses  under  the  curtains 
of  his  bed,  and  he  said  to  his  debtor,  "  Have  I  a  mana  with  you  ?  " 
and  he  answered,  "  Yea."  And  he  questioned  him  again,  "  May 
the  people  who  are  here  sleeping  or  awake  be  witnesses  ?  "  and 
he  answered,  "  No."  And  when  the  case  came  before  R.  Kahana, 
he  said  :  He  cannot  be  liable,  as  he  said  no.  A  similar  case 
happened  with  one  who  had  hidden  witnesses  in  a  grave,  and  to 
the  question,  "  May  the  living  and  the  dead  be  witnesses  ?  "  he 
answered,  "  No."  And  when  the  case  came  before  Resh  Lakish, 
he  acquitted  him.  Rabhina,  according  to  others  R.  Papi,  said  : 
The  decision  of  R.  Jehudah  that  it  must  be  said  by  the  party, 
"  Ye  are^  my  witnesses,"  is  no  matter  whether  it  is  said  by  the 
lender  in  the  presence  of  the  borrower  and  he  keeps  silent,  or  by 
the  debtor  himself.  And  this  is  inferred  from  that  which  was 
said  above,  that  the  debtor  had  answered  the  question  with  no  ; 
but  if  he  should  remain  silent,  he  would  be  liable.  There  was 
one  who  was  named  by  the  people  "  the  man  who  has  against  him 
a  whole  kab  of  promissory  notes."  And  when  he  heard  this,  he 
exclaimed  :  Do  I  owe  to  anyone  but  B  and  C  ?  The  latter  then 
summoned  him  before  the  court  of  R.  Na'hman,  and  R.  Na'hman 
decided  that  the  above  exclamation  could  not  be  taken  as  evi- 
dence, as  it  might  be  that  he  said  so  for  the  purpose  that  people 
should  not  think  him  too  rich.     There  was  another  one  who  was 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  87 

named  "  the  mouse  who  lies  on  dinars,"  and  at  the  time  he  was 
dying  he  said  :  A  and  B  are  my  creditors.  After  his  death  the 
creditors  summoned  his  heirs  before  R.  Ismael  b.  R.  Jose,  and  he 
made  the  heirs  pay,  for  the  reason  that,  if  he  said  so  while  in 
good  health,  it  might  be  supposed  that  he  did  so  for  the  purpose 
mentioned  above,  but  this  could  not  apply  to  a  man  who  was 
dying.  The  heirs,  however,  only  paid  the  half,  and  were  sum- 
moned for  the  other  half  in  the  court  of  R.  Hyya,  who  decided, 
as  it  is  supposed  that  one  may  say  so  for  the  purpose  that  he 
shall  not  appear  too  rich,  so  it  may  be  said  that  the  deceased  did 
so  that  his  children  should  not  appear  too  rich.  The  heirs  then 
demanded  what  they  had  already  paid,  to  which  R.  Hyya  an- 
swered: It  was  decided  long  ago  by  a  sage,  and  the  decision 
must  remain. 

If  one  has  confessed  before  two  witnesses  and  they  have  made 
the  ceremony  of  a  sudarium,  they  may  write  it  down  ;  but  if 
there  was  no  sudarium,  it  must  not  be  written.  If  he  has,  how- 
ever, confessed  before  three  without  a  sudarium,  according  to 
Rabh  it  may,  and  according  to  R.  Assi  it  must  not,  be  written. 
However,  there  was  such  a  case  before  Rabh,  and  he  took  into 
consideration  R.  Assi's  decision. 

R.  Ada  b.  Ahba  said :  Such  a  document  of  confession  is  de- 
pendent upon  circumstances.  If  the  people  were  gathered  by 
themselves  and  he  confessed  before  them,  then  it  must  not  be 
written ;  but  if  he  himself  caused  the  gathering,  it  may.  Rabha, 
however,  is  of  the  opinion  that  even  in  the  latter  case  it  must  not 
be  written  unless  he  said  to  them,  "  I  accept  you  as  my  judges  " ; 
and  Mar  b.  R.  Ashi  maintains  that  even  then  a  judgment  is  not 
to  be  written  unless  they  appoint  a  place,  and  summon  him  to 
the  court. 

It  is  certain,  when  one  has  confessed  with  the  ceremony 
of  a  sudarium  in  cases  of  movable  property,  that  a  judgment 
may  be  written,  but  not  otherwise.  But  how  is  it  with  real 
estate — without  a  sudarium  ?  According  to  Ameimar  it  may  not, 
and  according  to  Mar  Zutra  it  may  be  written.  And  so  the 
Halakha  prevails.  It  happened  that  Rabhina  came  to  the  city 
of  Damhariah,  and  R.  Dimi  b.  R.  Huna  of  the  same  city  ques- 
tioned him  :  How  is  the  law  if  the  confession  was  for  movable 
property  which  is  still  in  full  possession  of  the  parties?  And  he 
answered :  Then  it  is  considered  as  real  estate.  R.  Ashi,  how- 
ever, maintains  that  so  long  as  the  creditor  has  not  collected 
it,    it  is  to  be   considered  as  money,    because   if  the   possessor 


88  THE    BABYLONIAN    TALMUD. 

would  like  to  sell  it,  he  could  do  so  even  after  the  confession, 
which  is  not  the  case  in  real  estate. 

There  was  a  document  of  confession  in  which  it  was  not  writ- 
ten :  "  He  (the  debtor)  has  said  to  us,  '  Write  a  document,  sign 
it,  and  give  it  to  him  '  (the  creditor),"  and  both  Abayi  and  Rabha 
decided  that  this  case  was  similar  to  that  of  Resh  Lakish,  who 
decided  that  witnesses  would  not  sign  a  document  unless  they 
were  aware  that  the  person  who  told  them  to  sign  was  of  age ; 
the  same  is  the  case  here,  they  would  not  sign  it  unless  he  said 
to  them,  "  Sign  and  give."  R.  Papi,  according  to  others  R. 
Huna  b.  Joshua,  opposed :  Is  there  a  thing  of  which  we,  the 
judges,  are  not  sure,  and  the  scribes  are?  Therefore  the  scribes 
of  Abayi  and  of  Rabha  were  questioned,  and  they  were  aware  of 
the  law,  when  it  must  be  written  and  when  not.  There  was  an- 
other document  of  confession  in  which  the  memoranda,  and  all 
the  versions  which  are  needed  thereto,  were  written  correctly,  but 
the  words,  "in  the  presence  of  us  three,"  were  missing,  and  the 
document  was  signed  by  two  only.  And  Rabhina  was  about  to 
say  that  this  case  was  similar  to  that  of  Resh  Lakish  mentioned 
above ;  but  R.  Nathan  b.  Ami  said  to  him :  Thus  was  it  said  in 
the  name  of  Rabha :  In  such  a  case  it  may  be  feared  that  it  was 
an  error  by  the  court — i.e.,  they  thought  that  such  might  be  done 
by  two.  Said  R.  Na'hman  b.  Itz'hak  :  If  in  the  document  was 
written,  "  we  the  Beth  Din,"  although  it  was  signed  by  two,  it  is 
valid  without  any  investigation.  But  perhaps  it  was  written  by 
an  impudent  Beth  Din  of  two,  of  which,  according  to  Samuel, 
the  decision  is  to  be  considered,  but  they  are  named  impudent 
(and  the  Halakha  does  not  so  prevail).  The  case  was  that  the 
document  read,  "  the  Beth  Din  appointed  by  R.  Ashi."  Still, 
perhaps  the  same  holds  with  Samuel.  It  means  that  it  was  writ- 
ten :  Our  master,  Ashi,  thus  said. 

The  rabbis  taught :  If  one  said  :  "  I  have  seen  your  deceased 
father  hide  money  in  a  certain  place,  saying  this  belongs  to  so 
and  so,"  or,  "  The  money  is  for  second  tithe,"  if  this  place  is  to  be 
found  in  this  house,  he  said  nothing.  If,  however,  the  place  was 
in  a  field,  where  the  witness  could  take  it  without  being  pre- 
vented, his  testimony  is  to  be  considered,  this  being  the  rule  in 
such  a  case.  If  he  is  able  to  take  it  himself  without  notifying, 
his  word  is  to  be  trusted,  but  not  otherwise.  Moreover,  if  they 
themselves  saw  their  father  hide  money  in  a  chest,  or  the  like, 
and  he  said  to  them,  "  This  money  belongs  to  so  and  so,"  or,  "  It 
is  for  second  tithe,"  if  it  looks  as  if  he  told  this  as  his  last  will, 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  89 

he  is  to  be  trusted  ;  but  if  it  appears  that  he  desires  to  deceive 
them,  then  his  words  are  not  to  be  considered.  The  same  is  the 
case  if  one  became  harassed,  searching  for  the  money  which  his 
father  left  for  him,  and  he  dreamed  that  the  sum  was  of  such  and 
such  an  amount  and  was  placed  in  a  certain  place,  but  it  was  for 
second  tithe.  Such  a  case  happened,  and  the  sages  decided  that 
the  caprices  of  dreams  are  not  to  be  taken  into  any  consideration. 

''  If  two  of  the  judges  acquit''  etc.  But  how  is  the  judgment 
to  be  written?  According  to  R.  Johanan,  "So  and  so  is  ac- 
quitted," and  according  to  Resh  Lakish,  "  Such  and  such  judges 
acquitted,  and  such  hold  him  liable."  R.  Elazar,  however,  says  it 
should  be  written,  "  From  the  discussion  of  the  judges,  the  deci- 
sion is  that  such  is  acquitted."  And  what  is  the  difference? 
The  tale-bearing.  According  to  R.  Johanan  it  must  not  be 
written  who  acquits  and  who  holds  liable,  as  this  would  appear 
like  tale-bearing ;  and  according  to  Resh  Lakish,  it  must  be 
written,  as,  if  not,  it  would  appear  like  a  unanimous  verdict,  and 
it  would  look  as  though  they  had  lied ;  and  R.  Elazar's  decision 
is :  To  prevent  vainglory  it  may  be  written,  "  From  their  discus- 
sion, the  decision  is  that  the  defendant  is  acquitted,"  in  which 
there  is  no  talebearing  and  it  does  not  appear  unanimous. 

^^  Are  told  to  enter T  Who?  Shall  we  assume  the  parties? 
It  is  not  stated  the  parties,  but  the  witnesses,  must  go  out.  You 
must  then  say  that  the  witnesses  are  told  to  enter,  and  this  would 
not  be  in  accordance  with  R.  Nathan  of  the  following  Boraitha : 
The  testimony  of  the  witnesses  is  not  to  be  conjoined  unless  both 
witnesses  have  seen  the  case  together.  R.  Jehoshua  b.  Karha, 
however,  maintains  that,  even  if  they  have  seen  one  after  the 
other,  their  testimony  is  not  to  be  approved  by  the  court  unless 
they  both  testify  together.  R.  Nathan,  however,  maintains  that 
the  court  may  hear  the  testimony  of  one  to-day,  and  on  the 
morrow  from  the  other  one,  when  he  appears.  Hence,  according 
to  him,  both  witnesses  may  not  be  present  ?  The  Mishna  means 
the  parties,  and  it  is  in  accordance  with  R.  Nehemiah,  who  said 
in  the  following  Boraitha :  So  was  the  custom  of  the  pure- 
minded  in  Jerusalem.  They  let  the  parties  enter,  listened  to 
their  claims,  and  thereafter  let  the  witnesses  enter,  listened  to 
their  testimony,  and  told  all  of  them  to  go  out,  and  then  dis- 
cussed the  matter. 

The  text  says  that  their  testimony  is  not  conjoined,  etc. 
What  is  the  point  of  their  difference?  If  you  wish,  it  may  be 
said  common  sense.     If,  for  instance,  one  testifies  that   he  has 


90  THE    BABYLONIAN    TALMUD. 

seen  A  borrow  a  mana  from  B,  and  on  the  morrow  the  other 
witness  testifies  that  he  has  seen  A  borrow  a  mana  from  B,  one 
may  say,  e.g.,  C  has  seen  one  mana  and  D  has  seen  another  mana. 
Hence  their  testimony  cannot  be  conjoined  according  to  the  first 
Tana  of  the  Boraitha ;  but  according  to  R.  Jehoshua  b.  Karha 
it  may  be  conjoined,  as  both  admit  that  A  owes  a  mana  to  B. 
This  is  common  sense.  And  if  you  wish,  they  differ  in  the  meaning 
of  the  verse  [Lev,  v.  i]  :  "  And  he  is  a  witness,"  etc.  And  there  is 
a  Boraitha  :  It  reads  [Deut.  xix.  15]  :  "  There  shall  not  rise  up  one 
single  witness  against."  Why  is  it  written  "  single  "  ?  This  is  a 
rule  for  every  case  in  which  is  mentioned  "  a  witness,"  that  it 
means  two,  and  the  term  single  is  expressed  because  their  testi- 
mony is  to  be  considered  only  then  when  they  saw  it  together. 
So  is  the  explanation  of  the  first  Tana.  B.  Karha,  however,  gives 
his  attention  to  the  verse  cited  [Lev.  v.]  :  "  And  he  is  a  witness, 
since  he  either  hath  seen  or  knoweth  something."  Hence  it 
matters  not  whether  they  have  seen  together  or  singly.  And 
what  is  the  point  of  difference  between  R.  Nathan  and  the  first 
Tana  ?  Also,  if  you  wish,  it  is  common  sense ;  and  if  you  wish, 
in  the  explanation  of  the  Scripture.  "  Common  sense  " — usually 
one  witness  is  brought  not  to  make  the  defendant  pay,  but  to 
make  him  liable  for  an  oath.  Hence,  if  their  testimony  does  not 
come  together,  it  cannot  be  conjoined  to  make  the  defendant 
pay.  Such  is  the  meaning  of  the  first  Tana.  But  Nathan  main- 
tains :  Even  when  they  come  together,  does,  then,  their  testi- 
mony go  out  from  one  mouth  ?  They  testify  one  after  the  other, 
and  we  conjoin  them.  The  same  is  the  case  when  they  come  on 
two  days.  "  In  the  explanation  of  the  Scripture  "  [ibid.,  ibid.]  : 
"  If  he  do  not  tell  it,  and  thus  bear  his  iniquity."  And  both  the 
first  Tana  and  Nathan  hold  with  the  opponents  of  B.  Karha,  that 
both  witnesses  have  to  see  the  case  together.  And  the  point  of 
their  difference  is,  if  the  testimony  is  to  be  similar  to  the  seeing 
of  the  case.  One  holds  it  is  :  hence  it  cannot  be  conjoined  if  not 
seen  together ;  and  one  holds  it  is  not. 

Simeon  b.  Alyaqim  was  anxious  that  the  degree  of  Rabbi 
should  be  granted  to  Jose  b.  Hanina,  but  the  opportunity  did  not 
present  itself.  One  day  they  were  sitting  before  R.  Johanan,  and 
the  latter  questioned  :  Is  there  one  here  who  knows  if  the  Halakha 
prevails  Avith  B.  Karha  or  not  ?  And  B.  Alyaqim  pointed  to  Jose  b. 
Hanina,  saying :  He  knows.  Johanan  then  said :  Then  let  him 
tell.  But  B.  Alyaqim,  however,  rejoined :  Let  the  master  give 
him  the  deg-ree  of  Rabbi,  and  then  he  will  tell.     And  he  did  so. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  91 

and  then  said  to  him  :  My  son,  tell  me  just  so  as  you  have  heard. 
And  he  answered:  I  have  heard  that  B.  Karha  yielded  to  R. 
Nathan.  Rejoined  R.  Johanan :  Is  that  what  it  was  necessary 
for  me  to  know  ?  Is  it  not  self-evident  that  B,  Karha  could  not 
demand  that  they  should  testify  together,  as  he  does  not  desire 
that  the  seeing  shall  be  together  ?  Nevertheless,  since  you  have 
already  ascended  to  the  degree  of  Rabbi,  it  may  remain  with  you. 
And  R.  Zera  said  :  Infer  from  this  act  that  if  a  great  man  gives 
a  degree,  even  conditionally,  it  remains  forever. 

Hyya  b.  Abin  in  the  name  of  Rabh  said  :  The  Halakha  pre- 
vails with  Jehoshua  b.  Karha  concerning  real  estate,  as  well  as 
movable  property.  Ula,  however,  maintains :  It  prevails  with 
him  concerning  real  estate  only.  Said  Abayi  to  Hyya  :  You  say 
that  the  Halakha  prevails.  Is  there  one  who  differs  with  him  ? 
Did  not  Aba  say  in  the  name  of  R.  Huna,  quoting  Rabh :  The 
sages  yield  to  B.  Karha  concerning  the  testimony  as  to  real 
estate.  And  so  also  taught  Idi  b.  Abin  in  the  Section  Damages, 
taught  by  the  College  of  Kama  :  The  sages  yield  to  B.  Karha  con- 
cerning the  testimony  as  to  a  first-born,  as  to  real  estate,  as  to 
hazakah,  and  concerning  the  signs  of  maturity — for  a  male  as 
well  as  for  a  female  ?  You  contradict  one  person  with  another. 
People  may  hold  different  opinions.  Said  R.  Joseph  :  I  say  in 
the  name  of  Ula  that  the  Halakha  prevails  with  B.  Karha 
concerning  real  estate,  as  well  as  movable  property.  However, 
the  rabbis  who  came  from  the  city  of  Mehuza  say  in  the  name  of 
Zera,  quoting  Rabh  :  Concerning  real  estate,  but  not  concerning 
movable  property.  And  Rabh  is  in  accordance  with  his  theory 
elsewhere,  that  a  confession  after  a  confession,  or  a  confession 
after  a  loan,  may  be  conjoined  ;  but  a  loan  after  a  loan,  or  a  loan 
after  a  confession,  do  not  conjoin.  {I.e.,  if  one  says,  "  In  my  pres- 
ence A  confessed  on  Monday  that  he  owed  a  mana  to  B  "  ;  and 
the  second  witness  says,  "  In  my  presence  A  confessed  on  Tues- 
day that  he  owed  a  mana  to  B,"  they  may  be  conjoined.  And 
the  same  is  the  case  if  one  says,  "  On  Monday  A  borrowed  from 
B  a  mana  in  my  presence,"  and  the  other  witness  testifies,  "  In 
my  presence  A  confessed  on  Tuesday  that  he  owed  a  mana  to  B." 
But  if  one  testifies  that  in  his  presence  A  made  a  loan  to  B  on 
Monday,  and  the  other  testifies  that  the  same  was  done  on  Tues- 
day, they  are  not  to  be  conjoined,  as  they  may  be  two  different 
manas.  And  the  same  is  the  case  if  one  testify  that  A  confessed 
on  Monday  that  he  owed  a  mana  to  B,  and  the  other  testified 
that  B  had  made  a  loan  to  A  on  Tuesday.) 


92  THE    BABYLONIAN    TALMUD. 

Na'hman  b.  Itz'hak  met  Huna  b.  R.  Jehoshua,  and  questioned 
him  thus  :  Let  us  see  why  the  testimony  of  a  loan  after  a  loan  is 
not  to  be  conjoined.  Because  the  loan  which  one  witness  has 
seen  may  not  be  the  same  which  the  other  saw.  Why,  then, 
not  say  the  same  concerning  a  confession  ?  Say,  the  confession 
of  Tuesday  was  not  the  same  as  that  of  Monday?  The  answer 
was :  He  speaks  of  when  he  said  to  the  last  witness,  "  The  mana 
which  I  confess  before  you  is  the  same  as  that  which  I  confessed 
yesterday  before  so  and  so."  But  even  then,  the  second  witness 
only  knows  this,  but  not  the  first.  It  means  that  after  he  has 
confessed  before  the  second  he  goes  again  to  the  first  witness, 
telling  him,  "  The  mana  which  I  confessed  before  you,  I  did  so 
also  before  so  and  so."  Rejoined  Na'hman :  Let  your  mind  be 
at  rest,  for  you  have  set  my  mind  at  rest.  And  Huna  asked 
him  :  What  was  the  trouble  ?  Because  I  had  heard  that  Rabha, 
and  according  to  others  R.  Shesheth,  swung  an  axe  at  it  {i.e.,  dis- 
proved the  opinion),  saying :  Is  this  not  similar  to  a  confession 
after  a  loan  ?  Which  means  that  he  said  in  his  confession,  "  I 
confess  before  you  that  I  owe  a  mana  to  so  and  so,  which  I  bor- 
rowed yesterday  in  the  presence  of  so  and  so."  Hence  it  was 
already  said  once  by  Rabh.  Why,  then,  the  repetition  ?  Re- 
joined Huna  :  This  is  what  I  have  heard  of  your  people — when 
they  tear  out  trees,  they  plant  them  again  {i.e.,  you  answer  ques- 
tions, and  then  object  to  them  again).  The  sages  of  Nahardea, 
however,  say  that,  no  matter  if  it  is  a  confession  after  a  confes- 
sion, a  loan  after  a  confession,  or  a  loan  after  a  loan,  they  are  to 
be  conjoined,  as  they  hold  with  B.  Karha. 

R.  Jehudah  said  :  Witnesses  in  civil  cases  who  contradict  one 
another  in  unimportant  investigations  are  to  be  considered.  Said 
Rabha :  It  seems  that  he  meant  that  the  contradiction  was  that 
one  said  the  purse  in  which  the  mana  was  given  was  a  black  one 
and  the  other  said  it  was  a  white  one.  But  if  one  says  that  the 
loan  was  with  old  coins  and  the  other  said  it  was  with  new  ones, 
they  are  not  to  be  conjoined.  But  is  such  a  contradiction  not  to 
be  taken  into  consideration  even  in  criminal  cases?  Did  not  R. 
Hisda  say  that  if  one  testifies  that  he  killed  him  with  a  sword 
and  the  other  with  an  axe,  it  is  not  to  be  considered ;  but  if  one 
says  the  murdered  or  the  murderer  was  dressed  in  white,  while 
the  other  testifies  that  he  was  dressed  in  black,  their  testimony 
holds  good  ?  And  the  answer  was :  Do  you  contradict  one 
scholar  with  another?  Each  may  have  his  own  opinion.  The 
Nahardeans,  however,  maintain  that  even  if  one  testifies  old  coins 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  93 

and  the  other  new,  they  are  nevertheless  to  be  conjoined  ;  and 
this  is  because  they  hold  with  B.  Karha.  But  have  you  then 
heard  B.  Karha  say  that  they  may  be  conjoined  even  when  they 
contradict  each  other?  Therefore  we  must  say  that  the  Nahar- 
deans  hold  with  the  Tana  of  the  following  Boraitha :  R.  Simeon 
b.  Elazar  said:  The  schools  of  Shamai  and  Hillcl  do  not  differ, 
if  there  were  two  parties  of  witnesses.  If  one  party  testifies  that 
he  owes  him  two  hundred,  and  one  party  testifies  one  hundred, 
the  latter  amount  is  to  be  collected,  as  in  the  testimony  of  two 
hundred  one  hundred  is  certainly  included.  In  what  they  do 
differ  is  that,  if  among  one  party  of  witnesses  was  this  contradic- 
tion {i.e.,  one  says  that  he  owes  two  and  the  other  one  hundred), 
according  to  the  school  of  Shamai  the  whole  party  must  be  dis- 
qualified, because  one  of  them  is  surely  a  liar  ;  and  according  to 
the  school  of  Hillel  they  are  not,  as  both  admit  that  he  owes  one 
hundred  (and  so  the  Nahardeans,  be  it  old  or  new  coins,  both 
admit  that  he  owes  a  mana).  Suppose  one  testifies  that  he  bor- 
rowed a  barrel  of  wine  and  the  other  of  oil.  Such  a  case  came 
before  Ami,  and  he  made  him  liable  to  pay  the  value  of  a  barrel 
of  wine,  as  a  barrel  of  oil  amounts  to  twice  as  much  as  a  barrel  of 
wine.  But  according  to  whom  was  his  decision  ?  Is  it  in  accord- 
ance with  R.  Simeon  b.  Elazar?  He  said  so,  because  in  the 
amount  of  two  hundred  a  hundred  is  surely  included  ;  but  did  he 
say  so  in  such  a  case  as  that  of  the  barrels?  The  case  was  that 
they  testified  not  for  the  barrels  themselves,  but  for  the  value  {i.e., 
one  testified  that  he  owed  him  the  amount  of  a  barrel  of  wine 
and  the  other  the  amount  of  a  barrel  of  oil,  which  is  twice  as  much). 

Suppose  one  of  the  witnesses  says  the  law  was  made  in  the 
first  attic,  and  the  other  says  in  the  second  attic.  Said  R. 
Hanina :  Such  a  case  came  before  a  rabbi,  and  he  conjoined 
their  testimony. 

''And  whence  do  we  know  that  one  of  the  judges  must  not  say  ?  " 
The  rabbis  taught :  Whence  do  we  know  that  one  of  the  judges, 
when  he  is  going  out,  must  not  say,  "  I  was  in  favor  of  the  defend- 
ant, but  my  colleagues  were  against,  and  I  could  not  help  it,  as 
they  were  the  majority"?  To  this  it  reads  [Lev.  xix.  16]: 
"  Thou  shalt  not  go  up  and  down  as  a  talebearer  among  thy 
people";  and  it  reads  also  [Prov.  xi.  13]:  "He  that  walketh 
about  as  a  talebearer  revealeth  secrets."  There  was  a  disciple  of 
whom  there  was  a  rumor  that  he  told  a  secret  thing  which  was 
taught  in  the  college,  after  twenty-two  years,  and  R.  Ami  drove 
him  out  of  the  college,  saying  :  This  man  is  telling  secrets. 


94  THE    BABYLONIAN    TALMUD. 

MISHNA  VI. :  So  long  as  the  defendant  brings  evidence  to 
his  advantage,  the  decision  may  be  nulHfied  by  the  court.  If  he 
was  told:  "All  the  evidence  which  you  have,  you  may  bring 
before  the  court  within  thirty  days,"  if  he  found  such  within 
thirty  days,  it  affects  the  decision,  but  after  that  it  does  not. 
Exclaimed  R.  Simeon  b.  Gamaliel :  But  what  should  the  man 
do  who  could  not  find  such  within  thirty  days,  but  found  it  after? 
If  he  was  told  to  bring  witnesses,  and  he  said,  "  I  have  none  "  ; 
"  Bring  any  other  evidence,"  and  he  said,  "  I  have  none,"  and 
after  the  time  had  elapsed  he  brought  evidence  and  found  also 
witnesses,  it  is  as  nothing.  And  to  this  also  R.  Simeon  b. 
Gamaliel  exclaimed :  What  should  this  defendant  do  if  he  was 
not  aware  that  there  were  witnesses  and  evidence  ?  However,  if, 
after  he  said  "  I  have  no  witnesses,"  seeing  that  he  is  about  to 
be  liable,  he  says,  "  Bring  in  so  and  so  to  testify  in  this  case,"  or 
he  takes  out  from  under  his  girdle  a  new  evidence,  it  counts 
nothing  (even  according  to  R,  Simeon). 

GEMARA:  Said  Rabba  b.  R.  Hana :  The  Halakha  prevails 
with  R.  Simeon.  And  the  same  says  again  :  The  Halakha  does 
not  prevail  with  the  sages.  Is  this  not  self-evident?  If  it  pre- 
vails with  R.  Simeon,  it  cannot  prevail  with  the  sages?  One 
might  say  the  Halakha  prevails  with  R.  Simeon  to  start  with ; 
but  if  some  have  done  in  accordance  with  the  sages,  it  should 
remain  so.  He  comes  to  teach  us  that  even  if  it  was  so  done,  it 
must  be  changed. 

"  1/ /le  was  told  to  bring  witnesses,''  etc.  Said  Rabba  b.  R. 
Hana  in  the  name  of  R.  Johanan  :  The  Halakha  prevails  with  the 
sages.  And  the  same  said  again :  The  Halakha  does  not  pre- 
vail with  R.  Simeon  b.  Gamaliel.  Is  this  not  self-evident — that 
if  the  Halakha  prevails  with  the  sages  it  cannot  prevail  with  R. 
Simeon?  ^  He  comes  to  teach  us  that  only  in  this  case  the  Ha- 
lakha does  not  prevail  with  R.  Simeon,  but  in  all  other  cases  it 
does  ;  and  this  is  to  deny  what  Rabba  b.  b.  Hana  said  in  the  name 
of  R.  Johanan,  that  everywhere  R.  Simeon  b.  Gamaliel  is  men- 
tioned in  the  Mishnayoth  the  Halakha  prevails  with  him,  etc. 
(Last  Gate,  p.  388),  There  was  a  young  man  who  was  summoned 
to  the  court  before  R.  Na'hman,  and  he  asked  him  :  "Have  you 
no  witnesses?  "  and  he  answered  :  "  No."  "  Have  you  some  other 
evidence?"  and  he  answered  :  "No."  And  R.  Na'hman  made 
him  liable.  The  young  man  went  and  wept ;  and  some  people 
heard  him  cry,  and  said  :  We  know  something  in  your  behalf  m 
the  case  of  your  father.    Said  R.  Na'hman  :  "  In  such  a  case  even 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  95 

the  rabbis  would  admit  that  the  young  man  was  not  acquainted 
with  the  business  of  his  father  and  therefore  the  new  evidence 
is  to  be  taken  into  consideration."  There  was  a  woman  with 
whom  a  document  was  deposited  and  she  gave  it  away  to  some 
one,  saying  :  *•  I  am  aware  that  this  document  is  already  paid,  " 
and  R.  Na'hman  did  not  believe  her.  Said  Rabha  to  him  :  Why 
should  she  not  be  trusted  ?  Should  she  desire  to  tell  a  lie,  she 
could  burn  it.  And  R.  Na'hman  answered  :  Inasmuch  as  it  was 
approved  by  the  court  and  known  that  it  was  deposited  with  her, 
the  supposition  that  if  she  wanted  to  lie  she  could  burn  it  does 
not  apply.  And  Rabha  objected  to  R.  Na'hman  from  the  follow- 
ing :  A  receipt  which  was  signed  by  witnesses  may  be  approved 
by  its  signer.  If,  however,  there  were  no  witnesses,  but  he  was 
coming  out  from  a  depository  ;  or  the  receipt  was  written  on  the 
document  after  the  signature  of  the  witness  (which  was  in  the 
hands  of  the  creditor),  it  is  valid.  Hence  we  see  that  a  deposi- 
tory is  to  be  trusted.  This  objection  remains.  When  R.  Sam- 
uel b.  Jehudah  came  from  Palestine,  he  said  in  the  name  of 
R.  Johanan  :  The  defendant  has  always  a  right  to  bring  evidence 
against  the  decision  of  the  court,  unless  all  his  claims  are 
concluded  and  he  himself  confesses  that  he  has  no  more  witnesses 
nor  any  other  evidence.  However,  even  after  this,  if  witnesses  ar- 
rived from  the  sea  countries,  or  the  box  of  documents  of  his  father 
was  deposited  with  a  stranger  who  has  returned  it  after  he  was 
found  liable,  it  may  be  taken  into  consideration  to  change  the 
first  decision.  When  R.  Dimi  came  from  Palestine,  he  said  in 
the  name  of  R.  Johanan  :  If  one  is  summoning  a  party  who  says, 
"  I  want  my  case  to  be  brought  before  the  assembly  of  sages," 
while  the  plaintiff  says,  "  It  is  sufficient  that  it  be  tried  in  the 
court  of  this  city,  "  the  plaintiff  may  be  compelled  to  follow  the 
defendant  to  the  assembly.  Said  R.  Elazar :  Rabbi,  is  it  right 
that,  if  the  plaintiff  claims  one  mana  from  the  defendant,  he  shall 
spend  another  mana  to  go  with  him  to  the  assembly  ?  Therefore 
the  reverse  must  be  done :  The  defendant  should  be  compelled 
to  bring  the  case  before  the  court  in  that  city.  It  was  taught 
also  in  the  name  of  R.  Saphra :  If  two  men  were  cruel  to  one 
another,  and  one  of  them  insisted,  "  We  shall  try  our  case  here," 
while  the  other  says,  "  Let  us  go  to  the  assembly,"  the  latter 
must  be  compelled  to  try  his  case  in  that  city.  However,  if  there 
was  a  necessity  to  question  the  assembly,  they  might  write  and 
send  it  in  writing.  And  also,  if  the  defendant  demands,  "  Write 
down  the   reason  why  you  accused  me,  and  give   it  to  mc,  "  he 


96  THE    BABYLONIAN    TALMUD. 

may  be  listened  to.  In  the  case  of  a  widow  whose  husband  dies 
childless  and  she  has  to  marry  his  brother,  she  is  obliged  to  go  to 
that  place  where  the  brother  is  to  be  found  (that  he  should  marry 
her  or  perform  the  ceremony  of  Halitzah).  And  to  what  distance  ? 
Said  R.  Ami :  Even  from  Tiberias  to  Sephorius.  Said  R.  Kahana  : 
Whence  is  this  deduced  ?  From  the  Scripture  [Deut.  xxv.  8]:  "The 
elders  of  his  city  "  ;  of  his,  but  not  of  hers.  Said  Ameimar  :  The 
Halakha  prevails  that  one  may  be  compelled  togo  to  the  assembly 
(and  there  try  his  case).  Said  R.  Ashi  to  him:  But  did  not  R. 
Elazar  say:  He  may  be  compelled  to  try  his  case  in  that  city? 
This  is  when  the  borrower  said  thus  to  the  lender  ;  but  if  the 
lender  claims  so,  we  apply  to  him  [Prov.  xxii.  7] :  "The  borrower  is 
servant  to  the  man  that  lendeth." 

A  message  was  sent  from  Palestine  to  Mar  Uqba :  To  him 
to  whom  the  world  is  light  as  to  the  son  of  Bathiah  (it  means  to 
Moses),  peace  may  be  granted.  Uqban  the  Babylonian  com- 
plained before  us  that  Jeremiah  his  brother  destroyed  his  way 
{i.e.,  he  has  treated  me  badly,  through  which  I  have  lost  my 
money),  and  we  have  decided  that  he  shall  be  compelled  to 
appear  before  us  in  the  city  of  Tiberias.  (How  is  this  to  be  un- 
derstood? Thus  :)  They  said  to  him  :  You  may  try  him.  If  he 
will  listen  to  you,  well  and  good ;  and  if  not,  you  must  compel 
him  to  see  us  in  the  city  of  Tiberias.  Said  R.  Ashi :  This  was  a 
case  of  fine,  and  in  Babylon  they  are  not  allowed  to  try  cases  of 
fine;  and  that  which  they  said  to  Mar  Uqba,  "You  shall  try 
him,"  etc.,  was  only  to  honor  him. 


CHAPTER    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  /. :  Cases  coming  before  the  court,  be  they  civil  or 
criminal,  the  w^itnesses  thereof  must  be  examined  and  investi- 
gated. 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  v>rith  the  defence,  while  the  latter  must  commence 
with  the  defence  and  not  with  the  accusation,  (c)  In  the  for- 
mer 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  deliber- 
ating, announce  his  view  to  the  contrary.  In  the  latter,  how- 
ever, 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  disadvan- 
tage, 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, 
7  97 


98  THE    BABYLONIAN    TALMUD. 

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  quahfied  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  docu- 
ment 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  under- 
stood 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  con- 
sidered a  forgery?)  This  presents  no  difificulty,  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  never- 
theless 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  contra- 
diction 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 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).  99 

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  need-ed. 
The  Boraitha  speaks  of  non-suspicious  cases.  And  this  is  in 
accordance  with  Resh  Lakish,  who  used  to  propound  a  contradic- 
tion to  the  following:  It  reads  [Lev.  xix.  15]:  "In  righteousness 
shalt  thou  judge  thy  neighbor";  and  Deut.  xvi.  20  reads  :  "  Jus- 
tice, only  justice,  shalt  thou  pursue,"  from  which  it  is  to  be  under- 
stood 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:  "  Jus- 
tice, 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  hand- 
mills  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  ban- 
quet in  that  city]. 


loo  THE    BABYLONIAN    TALMUD. 

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  re- 
frain 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  de-' 
jected  by  themselves  ;  but  here,  if  you  say  to  them,  "  Whence 
do  we  know  that  what  you  say  is  true?"  j/£'«  cause  them  to  be 
dejected.]  Therefore  said  Ula :  The  court  questioned  the  other 
party,  "  Have  you  other  witnesses  to  make  collusive  the  wit- 
nesses of  your  opponents?"  Said  Rabba  to  him  :  Is  this  what 
you  call  beginning  with  the  defence  ?  With  this  saying  you  be- 
gin 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  unclean- 
ness  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  "). 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         loi 

''May  after  deliberating  .  .  .  annoimce  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  puri- 
fied 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  diflficulty.  A  judge  who  was  appointed  by  the 
court,  if  he  made  an  error,  he  must  pay  for  it ;  but  if  he  was  ap- 
pointed 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,  for  the  purpose  that 
they  should  not  bring  forth  offspring.  And  R.  Tarphon  ex- 
claimed 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  ma- 
jority has  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 


I02  THE    BABYLONIAN    TALMUD. 

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.  Ham- 
nuna  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  de- 
cided 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  accusa- 
tion, 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  deci- 
sion 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  accusa- 
tion," 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  col- 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         103 

lected,  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  sup- 
posed ?  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  dif^culty  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,''  Qlc.  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  there- 
after 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  "  mur- 
der," 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 


104  THE    BABYLONIAN   TALMUD. 

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  Sad- 
duceans  oppose ;  but  if  they  admit,  it  must  read  so  plainly  in 
the  Scripture.  And  such  a  decision  is  not  to  be  taken  in  con- 
sideration at  all,  as  schoolchildren  are  aware  of  it  ;  it  must  be 
retried.  The  same  Hyya  questioned  R.  Johanan :  How  is  it  if 
we  err  in  a  case  of  adultery  ?  And  he  answered  :  So  long  as  the 
fire  in  the  stove  burns,  cut  off  all  that  you  want  to  roast,  and 
roast  it.  {I.e.,  when  you  are  studying  a  thing,  consider  it  thor- 
oughly to  prevent  questions.  You  have  heard  from  me  that,  in 
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  the 
witness  who  had  accused  him  may  also  thereafter  defend  him  ? 
Then  our  Mishna  is  in  accordance  with  R.  Jose  b.  Jehudah,  and 
liot  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  tes- 
tify." 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 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        105 

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  discus- 
sion 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  re- 
tract. 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  state- 
ment of  our  master  in  Babylon. 

'' Discussed  in  the  day tijne,''  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  *  when  he  divideth     .     .     .     what 

*  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. 


io6  THE    BABYLONIAN    TALMUD. 

he  hath" — on  the  day,  "but  not  at  any  time"?  And  the  an- 
swer 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."*  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 
quahfied  to  be  a  witness?  However,  there  are  some  who  are 
quahfied  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 

*  Leeser's  translation  does  not  correspond. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        107 

them  at  separate  places,  that  they  shall  judge  the  guilty  ones 
and  hang  them  in  the  face  of  the  sun  (which  means  in  the  day- 
time)." 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  Sab- 
bath 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  Sab- 
bath, 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  docs  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  ciders  who  ruled  with 
him.     But  was  there  not  King  Saul,  of  whom  the  same  could  be 


io8  THE    BABYLONIAN   TALMUD. 

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  influ- 
ence 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  after- 
wards 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  objec- 
tion 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  tra- 
dition, 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 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        109 

mayst  wrest  the  case  of  the  stoning  of  an  ox.  (  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.  Jehudahalso  adds 
to  these  a  cruel  man. 

''All  are  competent  to  judge  civil  cases."  What  docs  the 
Mishna  mean  by  the  expression  "  all"  ?  Said  R.  Jehudah.  To 
add  a  bastard.  But  this  was  taught  already  in  the  above-men- 
tioned 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.  Ameimarsaid: 
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  zfzV/;  thee" — which  means  those  who  are  equal  to 
thee  {i.e.,  in  birth,  but  not  a  proselyte  and  a  bastard).  But  per- 
haps 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  //. :  The  Sanhedrin  sat  in  a  half-circle  in  order  that 
they  could  see  each  other.  Two  scribes  of  the  judges  stood  be- 
fore them,  one  on  the  right  and  one  on  the  left,  and  they  wrote 


no  THE    BABYLONIAN    TALMUD. 

down  the  reasons  of  the  accuser  and  of  the  defender.  Accord- 
ing 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  aheap  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  dis- 
cussions. "  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  menstrua- 
tion. 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  lihes  is  suflfi- 
cient  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.*  R.  Zera  said  : 
From  [Gen.  xxvii.  27]  :  "  And  he  smelled  the  smell  of  his  gar- 
ments," etc.  Do  not  read  "  bgadov,"  which  means  dress,  but 
"bagdov,"  which  means  his  transgressor.     There  were  wy^pzorf 

*  It  is  useless  to  quote  the  passage,  as  its  translation  does  not  correspond  with  the 
saying  of  Resh  Lakish  at  all. 

f  We  have  translated  in  accordance  with  Schonhack's  Dictionary,  as  it  seems  to  us 
correct. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        u. 

(insolent  fellows)  in  the  neighborhood  of  R.  Zera,  who  neverthe- 
less associated  with  them  and  showed  them  respect,  to  the  end 
that  they  should  repent.  The  rabbis,  however,  were  not  satis- 
fied 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  ///.  :  How  were  the  witnesses  awestruck  in  crimi- 
nal 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.  lo]  :  "  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  con- 
siders 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 


112  THE    BABYLONIAN    TALMUD. 

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.  i]  :  "  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. 
lo]  :  "  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 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).       113 

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  cer- 
tainty that  it  had  killed  him  and  its  owner  was  liable.  But  ac- 
cording 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.* 

"  Therefore  after  them  man  was  created  singlyy  The  rabbis 
taught :  Adam  the  first  was  created  singly,  and  why  ?  That  dis- 
believers 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  up- 
right 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  : 

*  Here  come  Haggadah,  which  we  have  transferred  to  the  Haggadic  part  of 
this  tract. 


114  THE    BABYLONIAN    TALMUD. 

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  rob- 
bers 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.  Mairused  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.*) 

*  Here  also  are  a  few  pages  of  Haggadah,  which  we  have  transferred  to  the 
Haggadic  chapter. 


CHAPTER   V. 

RULES  AND  REGULATIONS  CONCERNING  PRELIMINARY  QUERIES  EX- 
AMINATION, 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  AC- 
QUITTED AND  BY  WHAT  ACCUSED  ;  AND  TO  WHAT  NUMBER 
JUDGES  MAY  BE  ADDED,  IF  THEY  CANNOT  COME  TO  ANY  CONCLU- 
SION. 

MISHNA  /.  :  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  concern- 
ing 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  wit- 
nesses, and  even  two,  claim  that  they  did  not  know,  their  testi- 
mony holds  good.  In  both  cases,  however,  if  they  contradict 
each  other,  their  testimony  is  ignored.  If  one  says,  "  It  hap- 
pened on  the  second  of  the  month,"  and  the  second  says,  "on 
the  third  of  it,"  their  testimony  holds  good,  as  it  is  to  be  sup- 
posed 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  tes- 
timony 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 


ii6  THE   BABYLONIAN   TALMUD. 

third  "  and  the  other  "  in  the  fifth  hour  of  that  day,"  it  is  ig- 
nored. 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  Hstened  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  mor- 
row. 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  re- 
tract 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  ad- 
vantage 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  discus- 
sion is  prolonged  until  one  of  the  accusers  accepts  the  opinion 
of  the  acquitters. 

GEMARA  :  Whence  is  all  this  deduced  ?     Said  R.  Jehudah  : 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        117 

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  dili- 
gently." 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  search- 
ing is  mentioned  three  times  and  in  the  latter  searching  is  men- 
tioned 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  warn- 
ing? 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  superflous  if  it  were  not  written  for  that  purpose. 
And  to  such  an  analogy,  which  comes  from  a  superfluous  ex- 
pression, 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 /<?r/z^rz  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 


ii8  THE   BABYLONIAN    TALMUD. 

which  remains  appHes  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  ston- 
ing is  more  rigorous,  it  does  not  matter  if  a  thing  which  is  to  be 
inferred  by  the  drawing  of  an  a  fortiori  conclusion  is  neverthe- 
less 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  are  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  ques- 
tion is  correct,  according  to  Abayi,  who  said  that  R.  Mair  main- 
tains 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  main- 
tains 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  mmif"    etc.     The  rabbis  taught:  The 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        119 

query  was :  Do  you  recognize  this  man  as  the  murderer  of  him 
who  was  slain?  Was  he  a  heathen  or  an  IsraeHte?  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?  How  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  pre- 
scribed 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  pre- 
sumptuously  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."  * 
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: 


*  The  expression  in  Hebrew  is  al  dbar  asher  eiiah,  etc.— literally,  "the  thing 
which  he  has  violated,"  etc.;  and  it  should  he  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  it  was  a  crime  and  he  did  not  listen. 


I20  THE   BABYLONIAN    TALMUD. 

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  follow- 
ing Boraitha :  Warning  does  not  apply  to  a  scholar,  as  the  pur- 
pose 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  appli- 
cable 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  admis- 
sible. 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  testi- 
fies 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 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  ,31 

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  pos- 
sible 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  Borai- 
tha, 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  investiga- 
tion 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  ex- 
planation hold  good?  Does  not  the  Mishna  state  that  their 
testimony  holds  good?      Therefore   said   he:  It    is    to    be    ex- 


122  THE    BABYLONIAN    TALMUD. 

plained  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  San- 
hedrin, 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  an- 
nulled, 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  re- 
main 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  inojith,''  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  twent)^- 
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  intercala- 
tions {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 


TRACT  SANHEDRIN    (SUPREME    CCUNCIL).         123 

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,  usu- 
ally, 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  au- 
thority :  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.  Jchudah  said  :  Until 
the  seventh.  And  the  sages  of  Nahardea  said  :  Until  the  six- 
teenth. And  the  basis  of  both  is  R.  Johanan's  statement.  They 
differ,  however,  in  the  explanation  of  it.  According  to  R.  Jehu- 
dah,  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  pro- 
nounce, 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  bene- 
diction 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  sufificient.  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  bless- 
ing our  women  also  pronounce.  We,  however,  have  adopted  that 
which  was  composed  by  R.  Jehudah :  "  Blessed  be  He  who  with 
His  v/ords  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, 


124  THE    BABYLONIAN    TALMUD. 

and  what  is  done  through  them  is  truth."  *  And  to  the  moon 
He  commanded  that  she  renew  herself  every  month,  and  that  she 
should  be  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."  f] 

'*  If  one  says,  '  in  the  second  hour,'  "  etc.  Said  R.  Shimi  b. 
Ashi :  This  is  only  when  they  differ  concerning  the  hour ;  but  if 
one  says,  "  It  was  before  sunrise,"  and  the  other  says,  "  It  was 
after,"  their  testimony  is  to  be  ignored.  Is  this  not  self-evident? 
I.e.,  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. 


*  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. 

f  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. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        125 

"  The  opinion  of  the  acqiiittery  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  con- 
demning, 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  cor- 
rect according  to  the  explanation  of  R.  Ashi,  as  such  a  proclama- 
tion 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  pro- 
claims 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." 


CHAPTER   VI. 

RULES  AND  REGULATIONS  CONCERNING  THE  EXECUTION  BY  STON- 
ING 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  /. :  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  pro- 
cession ;  and  even  if  the  guilty  one  himself  says,  "  I  have  some- 
thing 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  proces- 

126 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         127 

sion,  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  gar- 
ments; 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.''^ 

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 

*  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. 


128  THE    BABYLONIAN    TALMUD. 

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. 

"  Ofte  stands  with  a  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  congre- 
gation, 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 


TRACT    SANHEDRIN  (SUPREME   COUNCIL).         129 

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  inter- 
pret 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,  a^id  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.  Levi  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.  1.  23] :  "  Whoso  offereth  thanksgiving,  glorifieth 
me."  *  The  same  said  again :  When  the  Temple  was  in  exist- 
ence, 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 

*Tbe  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. 


I30  THE    BABYLONIAN    TALMUD. 

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  //. :  When  he  (the  guilty  one)  was  far  from  the 
place  of  execution — a  distance  of  ten  ells — he  was  told  to  con- 
fess, 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.  11]  : 
"  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  re- 
joined :  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." 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).          131 

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.  Jo- 
hanan 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  [Dcut.  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.  Jc- 
hudah.  Said  to  him  R.  Nehemiah  :  Where  is  the  place  in  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."  *     Were  they,  then,  pun- 

*  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. 


132  THE    BABYLONIAN    TALMUD. 

ished  with  both  ?  Said  Rabhina  :  That  which  was  fit  for  burn- 
ing, 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  GapafiaWa.  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  Borai- 
tha:  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  eup,"  etc. 
R.  Shilla  lectured  :  The  Holy  One,  blessed  be  He,  said  to  him: 
Thou  thyself  hast  transgressed  more  than  Israel,  as  I  have  com- 
manded [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  com- 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  ,33 

manded  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.*  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 

*  The  term  in  Hebrew,  "emek,"  has  two  meanings — "valley"  and  "deep." 
Hence  the  explanation  of  R.  Johanan. 


134  THE    BABYLONIAN   TALMUD. 

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,  Zigo- 
ron.  Piskon  means  that  he  argues  before  Heaven  for  Israel's 
sake;  AiUmin  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  any- 
thing if  Gabriel  had  not  done  so. 

It  reads  [Job  xxxvi.  19]  :  "  Hast  thou  prepared  thy  prayer 
before  thy  trouble  came?"*  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  cottfession,''  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 

*  We  translate  according  to  the  Talmud.    Leeser's  translation,  among  others,  does 
not  correspond. 


TRACT    SANHEDRIN    (SUPREME  COUNCIL).         135 

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  he  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  neverthe- 
less they  were  not  listened  to.  (So  did  it  happen  with  the  con- 
tractor Bar  Mayon.)  * 

*  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  not  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  dis- 
ciple 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  com- 
plete 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  are  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,  how- 


136  THE    BABYLONIAN   TALMUD. 

MISHNA  ///. :  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  con- 
gregation 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  dis- 
graced.*) 

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  efifects  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 

ever,  who  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  punish- 
ment 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. 

*  In  the  text  there  is  repeated  here  a  contradiction  from  Tract  Souteh,  its  proper 
place,  which  we  therefore  omit. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         137 

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  ye- 
yoreh." 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  dis- 
tance of  four  ells. 


138  THE   BABYLONIAN    TALMUD. 

Samuel  said:  If  before  the  execution  the  hands  of  the  wit- 
nesses 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  fol- 
lowing :  Every  one,  of  whom  two  witnesses  testify  that  he  was 
sentenced  at  such  and  such  a  court,  and  A  and  B  were  his  wit- 
nesses, 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.  2i] :  "  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  mur- 
dered, 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."  In- 
fer from  this  that  it  is  a  meritorious  *act  for  the  avenger  to  do 
so  himself.  And  whence  do  we  know  that  if  the  murdered  one 
had  nonfe  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 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         139 

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,  how- 
ever, 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  prin- 
ciple 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 


I40  THE    BABYLONIAN    TALMUD. 

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  addi- 
tion; "  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  ex- 
clude a  stubborn  and  rebellious  son.  But  is  there  not  a  Bor- 
aitha  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.  EHezer  infers  from  this  to  include  a 
stubborn  son,  and  his  reason  is  this :  It  reads,  "  If  a  man,"  mean- 
ing a  man,  but  not  a  son;  "  committed  a  sin,"  means  he  is  put 
to  death,  because  he  has  already  committed  a  sin;  but  a  stub- 
born 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  exclu- 
sion, 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  para- 
mour, in  which  case,  according  to  the  law,  she  is  to  be  burned 
and  he  is  to  be  stoned.  Hence  there  are  two  different  kinds  of 
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. 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         14, 

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  ofT  immediately.  And  should  he  leave 
him  over  night,  he  transgressed  a  negative  commandment,  as  it 
reads  [Deut.  xxi.  2^]  :  "  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  trou- 
ble, in  what  language  does  the  Shekinah  lament  over  him? 
Oalleni  meiraushi,  qalleni  miz'raay.*  Now,  if  the  Omnipo- 
tent 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  trans- 
gress. 

The  one  executed  was  not  buried  in  the  cemetery  of  his 
parents,  but  tw^o  cemeteries  were  prepared  by  the  court,  one 

*  We  cannot  find  in  the  Enjjlish  idiom  any  equivalent  for  this.  In  the  German 
translation  of  the  Mishna  (Berlin,  1823)  it  is  translated  in  accordance  with  Rashi. 
"  Wie  lasst  sich  gleichsam  die  Gottheit  bei  solcher  Gelepenheit  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  ail  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,"  liter- 
ally, "an  ignominy"  (according  to  Thosphath  and  Hananel).  And  therefore  i^ 
seems  to  us  better  to  give  the  original  expression  of  the  Mishna.  without  any  explan- 
ation, leaving  the  matter  to  the  reader,  as  we  could  not  omit  it,  .according  to  our 
method. 


142  THE    BABYLONIAN    TALMUD. 

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  under- 
stood that  everything  should  be  already  prepared  for  the  bury- 
ing. 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  zvas  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  de- 
duce from  the  Torah  that  one  must  be  buried?  And  the  latter 
remained  silent — without  answer.     Said  R.  Aha  b.  Jacob :  The 


TRACT   SANHEDRIN   (SUPREME   COUNCIL).         143 

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  pre- 
pared 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  be- 
cause 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  dis- 
grace, 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  w^orthy  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  lamen- 
tation 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  la- 
mented," if  it  is  an  honor  for  the  deceased  only,  he  may  be  lis- 
tened 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 


144  THE    BABYLONIAN    TALMUD. 

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  up- 
right 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  Jere- 
miah [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  Heze- 
kiah,  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 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         145 

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  tzvo  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  sepul- 
chre 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  pur- 
pose said  above,  he  would  remain  alive.  But  if,  as  you  say. 
Elijahu's  promise  was  not  fulfilled?  As  it  was  said  by  R.  Jo- 
hanan :  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  pro- 
hibited 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.* 

The  rabbis  taught :  They  who  are  put  to  death  by  the  gov- 

*  Here  are  omitted  two  pages  of  the  text,  as  their  contents  are  repeated  in  differ- 
ent 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  repent- 
ance, 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  gov- 
ernment, 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.  Ano  Ameimar  said 
that  the  Hilakha  prevails  in  accordance  with  Abayi,  but  the  rabbis  said  that  the 
Halakha  prevails  with  Rabha,  with  which  the  Gemara  agrees. 
10 


146  THE    BABYLONIAN    TALMUD. 

ernment,  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.  i6]  :  "  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?  Re- 
joined R.  Jehudah:  He  slew  him  and  his  sons.  As  it  reads  [II 
Kings,  ix.  26]  :  "  Surely  I  have  seen  yesterday  the  blood  of  Na- 
both, and  the  blood  of  his  sons."  The  rabbis,  however,  main- 
tain 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  Bena- 
yahu  brought  the  king  word  again,  saying.  Thus  hath  Joab 
spoken,  and  thus  hath  he  answered  me."  Joab  said  to  Bena- 
yahu  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 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         147 

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.  2^]  :  "  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  ser- 
vants, 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  an- 
swered that  he  was  the  revenger  of  the  blood  of  Asahel.  But  did 
not  Asahel  prosecute  Abner?  And  he  haid  :  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.  23]  "On  the  fifth  rib"?  to  which  (ac- 
cording 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.* 
But  you  are  indeed  a  rebel,  as  you  were  inclined  to  Adoniyahu 
against  David's  will.  It  reads  [I  Kings,  ii.  28]  :  "  And  the  re- 
port came  to  Joab;  for  Joab  had  turned  after  Adoniyahu. 
though  he  had  not  turned  after  Abshalom."  Why  is  it  men- 
tioned here  that  he  had  not  turned  after  Abshalom?     Said  R. 

*  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. 


148  THE   BABYLONIAN    TALMUD. 

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  writ- 
ten [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  right- 
eous 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  accus- 
tomed, even  little  things  and  fishes. 


CHAPTER    VII. 

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  CON- 
CERNING BLASPHEMY  SHOULD  BE  CONDUCTED.  CONCERNING 
THOSE  WHO  TRANSFER  THEIR  CHILDREN  TO  MOLECH  ;  FAMILIAR 
SPIRITS,  ETC.  CONCERNING  CURSING  FATHER  AND  MOTHER, 
SEDUCERS    AND    MISLEADERS,    ETC. 

MIHSNA  /. :  Four  kinds  of  capital  punishment  are  pre- 
scribed to  the  court  by  the  Scriptures;  viz.,  stoning,  burning, 
slaying  by  the  sword,  and  choking.  R.  Simeon,  however,  main- 
tains: 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  ac- 
tion), 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. 


ISO  THE    BABYLONIAN    TALMUD. 

For  the  reason  of  not  changing  the  order  prescribed  by  the 
Scripture  is  because  of  the  hoHness  of  that  day,  and  not  because 
one  act  is  more  rigorous  than  the  other.  R.  Huna  b.  R.  Jehos- 
hua  maintains  that  the  order  of  the  daily  ofiferings  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  men- 
tioned above  in  the  name  of  R.  Huna  excludes  also  the  cere- 
mony of  Halitzah,  and  also  the  dressing  of  the  priests  at  their 
worship  in  the  Temple,  as  explained  elsewhere.* 

"  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  prin- 
ciple 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?  Be- 
cause it  reads  that  she  violates  her  father,  which  means  that  her 
father  loses  his  priesthood.  The  rabbis  hold  that  only  a  mar- 
ried 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  cate- 
gory of  stoning;  and  it  is  already  explained  above  that  a  be- 

*  Mishnas  mentioned  in  the  text  will  be  translated  in  their  proper  places. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  151 

trothed  disgraces  her  father  and  his  whole  family,  while  the  dis- 
grace of  a  married  one  belongs  more  to  her  husband.* 

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  burn- 
ing is  also  more  rigorous  than  the  sword. 

Burning  is  also  more  rigorous  than  choking.  This  is  in- 
ferred from  the  fact  that  a  married  daughter  of  a  priest  is  ex- 
cluded 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  de- 
cided above  that  they  who  laid  their  hands  on  the  main  prin- 
ciple, 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  be- 
cause 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. t 

R.  Simeon  also  differs  concerning  the  punishment  of  mis- 
leaders  of  a  misled  town,  as  according  to  him  they  also  are  pun- 
ished 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  ac- 
cording to  R.  Simeon,  she  must  be  burned.     And  the  same  is 

*  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. 

f  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. 


152  THE    BABYLONIAN    TALMUD. 

the  case  if  she  had  sinned  with  her  father.  (Although,  if  such 
a  case  happened  with  a  commoner,  burning  is  apphed,  never- 
theless she  is  to  be  stoned,  according  to  the  rabbis);  as  accord- 
ing 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.  lo]  : 
"  Then  shall  the  adulterer  be  put  to  death,  "  together  with  the 
adulteress."  And  this  applies  either  to  a  betrothed  or  to  a  mar- 
ried woman,  with  whom  the  daughter  of  a  priest  is  certainly 
included.  Why,  then,  does  the  Scripture  distinguish  a  daugh- 
ter of  a  priest  [ibid.  xxi.  9]  :  "  And  if  the  daughter  of  any  priest 
profane  herself  by  committing  harlotry,  her  father  doth  she  pro- 
fane: 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  ston- 
ing 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  com- 
moner; 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  regard- 
ing a  betrothed  one,  and  thereafter  were  found  collusive;  the 
death  which  would  apply  to  her,  were  she  a  daughter  of  a  com- 
moner, 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  ex- 


TRACT   SANHEDRIN    (SUPREME   COUNCIL).          153 

pression  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  Hable  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?  There- 
fore 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  be- 
trothed. 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?  Burn- 
ing 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  ac- 
cordance 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  be- 
trothed 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 


154  THE    BABYLONIAN    TALMUD. 

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  ac- 
cordance 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  him- 
self because  of  the  latter  expression,  "  under  the  control  of  her 
father-inxlaw." 

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 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         155 

at  this  time,  and  the  reward  will  come  from  Heaven."  An- 
swered 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  al- 
ready written  in  Lev.  xx.,  in  which  a  daughter  of  a  priest  is  in- 
cluded. 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  ap- 
plies 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  com- 
moner who  is  betrothed  only?  R.  Aqiba  rejoined:  Ishmael, 
my  brother,  I  infer  it  from  the  word  mid,  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  ex- 
plain 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  com- 
mon ;  if  until  that  time  he  was  honored,  from  that  time  he  is  dis- 
graced. As  people  say:  ''  Cursed  be  such  a  man  who  has  born 
such  a  daughter;  cursed  is  he  who  has  brought  her  up;  cursed 


156  THE   BABYLONIAN    TALMUD. 

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  //. :  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  wath  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  burn- 
ing 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,  ^vherefrom  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."  *  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,  bab- 
bling mockers,  they  gnashed  upon  me  with  their  teeth,"  which 

*  Leeser  translates  "own  lives "  according  to  its  sense.  We,  however,  translate 
it  literally,  according  to  the  Talmud. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         157 

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  in- 
ferred 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,  al- 
though 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  in- 
ferred "  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. 


158  THE   BABYLONIAN    TALMUD. 

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  h.  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  he  was  answered  that  no 
evidence  of  a  child  is  to  be  taken  into  consideration,  he  related 
before  them  the  other  case  which  he  saw  when  he  was  already 
of  age,  and  to  this  they  answered  him :  That  court  was  an  ig- 
norant one. 

MISHNA  ///. :  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  of¥  with  a  butcher's  hatchet.  And  he  was  an- 
swered :  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  repul- 


TRACT   SANHEDRIN   (SUPREME   COUNCIL).         159 

sive;  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  Scrip- 
ture, 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  men- 
tioned 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 — per- 
haps 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  pun- 
ishment 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  pun- 
ished 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 


i6o  THE    BABYLONIAN    TALMUD. 

shalt  put  away  (the  guilt  of)  the  innocent  blood  from  the  midst 
of  thee."  From  this  we  see  that  all  shedders  of  blood  are  com- 
pared 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  to- 
ward himself,  the  other  doing  the  same,  until  the  soul  of  the 
culprit  departed. 

GEMARA:  The  rabbis  taught:  It  reads  [Lev.  xx.  lo]  : 
"  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.*  [Ibid.]  : 
"  Then  shall  the  adulterer  be  put  to  death  "  means  choking. 
But  perhaps  it  means  some  other  kind  of  death  which  is  pre- 
scribed by  the  Scripture?  It  w^as  said  that  wherever  it  is  writ- 
ten 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  be- 
cause there  is  a  tradition  that  in  any  place  where  death  is  men- 
tioned 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.  lo],  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 

*  The  text  reads,  "  D^IPIN  Dt^fif',"  literally,  "  the  wife  of  many  strangers,"  and 
so  it  means.  The  explanation  of  Rashi  that  the  word  acheri7n  means  a  Samarite,  is 
probably  because  he  did  not  know  of  the  existence  of  such  a  sect  who  live  in  com- 
mon 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. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         i6i 

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  men- 
tioned 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  (page  ooo). 

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  him- 
self 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  com- 
mandment 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  command- 
ments— the  commandment  of  adultery  and  the  separate  com- 
mandment 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 


i62  THE    BABYLONIAN    TALMUD. 

father,  or  already  married.  One  that  commits  a  crime  with  his 
daughter-in-law  transgresses  also  two  commandments — adul- 
tery 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  inter- 
marry on  account  of  holiness  of  station  are  a  widow  to  a  high- 
priest;  a  woman  who  had  been  divorced  or  performed  the  cere- 
mony 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  never- 
theless 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  con- 
cerning 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  con- 


TRACT    SANHEDRIN   (SUPREME    COUNCIL.)         163 

cerning  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.  Jehu- 
dah differ  concerning  a  daughter-in-law,  who  is  guilty,  accord- 
ing to  our  Mishna,  as  to  two  commandments?  It  then  must  be 
said,  because  there  is  one  body,  although  there  are  two  trans- 
gressions, he  is  culpable  only  for  one,  as  it  reads,  "  her  naked- 
ness." 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  difiference  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  difiference  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,*  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  un- 

*  For  the  explanation  of  a  pleonastic  term  we  refer  the  reader  to  Mielziner's 
"  Introduction  to  the  Talmud  "  (page  150). 


i64  THE    BABYLONIAN    TALMUD. 

cover,"  and  there  it  is  written,  "  The  nakedness  of  his  father  he 
had  uncovered."  As  the  latter  means  his  wife,  so  does  the  for- 
mer. And  from  the  expression  "  his  father's  wife,"  it  is  in- 
ferred, 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  teadh  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  her- 
self before  a  male  animal,  are  punished  with  stoning.  And 
should  one  say :  If  man  has  sinned,  what  is  the  fault  of  the  ani- 
mal? 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  * 


*  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. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         165 

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  per- 
haps some  other  kind  of  death?  It  reads  here  (ibid.)  "  tha- 
hargu  "  (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,  how- 
ever, 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  an- 
other 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. 


i66  THE    BABYLONIAN    TALMUD. 

and  also  in  the  name  of  R.  Aqiba,  that  it  is  not  necessary,  as  in 
the  above  verses  there  is  a  warning  for  both.*) 

MISHNA  VI. :  A  blasphemer  is  not  guilty,  unless  he  men- 
tioned 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  old- 
est 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.  i6,  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.  2y']  :  "  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  parch- 
ment and  tore  it,  the  term  "  we-yiqaub  "  [H  Kings,  xii.  lo]  ? 
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  "  nau- 
quib "  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 

*  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. 


TRACT   SANHEDRIN    (SUPREME   CCUNCIL).         167 

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  (zuc- 
yiqaub)  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  fol- 
lowing 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  dif- 
ference 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  punish- 
ment 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. 


i68  THE   BABYLONIAN    TALMUD. 

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.  Sim- 
eon 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  ob- 
server 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  dif- 
ferent kinds  of  seeds  together  (which  are  forbidden  to  the  Is- 
raelites); 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  Gen- 
esis ii.  16.*  Were  the  descendants  of  Noah  indeed  commanded 
concerning  judges?  Is  there  not  a  Boraitha:  Ten  command- 
ments 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 

*  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  opin- 
ion 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. 


TRACT    SANHEDRIN    (SUPREME    COUNXTL).         169 

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  command- 
ments judges  and  blasphemy,  and  included  castration  and  ki- 
laim.  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  w4iom  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  expres- 
sion "  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  blood- 
shed, 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  descend- 
ants 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  dis- 


I70  THE    BABYLONIAN    TALMUD. 

ciples  of  Rabh  say :  For  each  case  of  the  seven  commandments 
a  descendant  of  Noah  is  to  be  killed.  As  the  Scripture  pre- 
scribed 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.  Jona- 
than 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.*  R.  Jacob 
b.  Aha  found  a  writing  in  a  Haggadic  book  written  by  the  col- 
lege 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.f 
his  blood  shall  be  shed."  What  is  meant  by  "  a  man  in  man," 
if  not  a^i  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  Mana- 
sheh,  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  com- 

*  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. 

f  The  term  in  Hebrew  is  "  be-adam,"  literally,  "  in  the  man"  ;  Leeser,  how- 
ever, translates  according  to  the  sense. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         171 

mandment  of  bloodshed  not  apply  to  a  woman?  Is  it  not 
written  [Gen.  xviii.  19]  :  "  For  I  know  him,  that  he  will  com- 
mand his  sons  and  his  household  after  him"?  And  by  the 
"  household  "  it  means  the  woman,  as  the  sons  are  already  men- 
tioned ?  He  objected,  and  he  himself  answered :  It  reads  farther 
on,  "  that  they  shall  keep  the  way  of  the  Lord,  to  do  righteous- 
ness 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  writ- 
ten "  any  man  whatsoever  "  ?  To  include  heathens  in  the  warn- 
ing of  adultery,  as  well  as  Israelites.  But  was  it  not  said  above 
that  in  the  seven  commandments  which  were  given  to  the  de- 
scendants 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  pun- 
ishment of  which  is  by  the  sword,  and  not  choking.  But  is 
there  not  a  Boraitha:  A  heathen  who  has  sinned  with  a  be- 
trothed 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  mar- 
riage 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  pre- 


172  THE    BABYLONIAN    TALMUD. 

scribed  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  permis- 
sible to  them.  So  is  the  decree  of  R.  Mair.  The  sages,  how- 
ever, 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  con- 
sidered 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  dift'erence  in  which  court  he  should  be  tried.* 

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."t      (And  R.  Huna  acted  according  to  his  theory,  and 

*  The  text  farther  on  discusses  about  a  proselyte,  whose  mother  embraces  Juda- 
ism 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. 

\  Leeser's  translation  does  not  correspond. 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         173 

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  *  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  com- 
mandment w^hich  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,  wiiich  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  re- 
peated on  Sinai,  it  must  be  said  it  was  given  to  Israel  only?     Al- 

*  The  term  in  Hebrew  is  "  obed  " ;  literally,  "worshipped,"  and  also  "works 
up"  ;  and  (f^crt' means  "  a  slave."     Hence  his  analogj^. 


174  THE    BABYLONIAN    TALMUD. 

though  idolatry  was  repeated  on  Sinai,  as  we  find  that  the  de- 
scendants of  Noah  were  already  punished  for  idolatry,  there- 
fore it  applies  to  both.  He  says  further  that  that  which  was 
given  to  the  descendants  of  Noa'h  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  fhou,  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  never- 
theless it  applies  to  Israel  only,  and  not  to  the  descendants  of 
Noah?  The  verse  just  cited  was  needed  to  permit  the  circum- 
cision 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.  Je^udah  said  in  the  name  of  Rabh :  Adam  the  First  was 
not  perniitted  to  eat  meat.  As  it  reads  [ibid.  i.  29,  30]  :  "  To 
you  it  shall  be  for  food,  and  to  every  beast  of  the  field,"  mean- 
ing, 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 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         175 

which  the  blood  is  separated  from  the  flesh,  and  exckides  rep- 
tiles, 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  zvitcJicraft."  What  is  his  reason?  It 
reads  [Ex.  xxii.  17]  :  "  Thou  shalt  not  suffer  a  witch  to  live  "; 
and  farther  on :  "  Whosoever  lieth  wuth  a  beast  shall  surely  be 
put  to  death  " — which  applies  also  to  the  descendants  of  Noah. 
And  as  this  appHes  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  "  gen- 
der "  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 
alreadv  stated. 

"  Said  R.  JcJioshua  b.  Karhay  etc.     Said  R.  Aha  b.  Jacob : 


176  THE    BABYLONIAN    TALMUD. 

Infer  from  this  that  one  is  not  guilty  unless  he  blesses  (curses) 
the  Name  which  contains  four  letters,  but  not  that  of  two  let- 
ters (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  let- 
ters? 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  let- 
ters— which  are  not  known  to  us,  and  the  example  is  not  par- 
ticular, he  comes  to  teach  us  that  it  is  not  so).* 

"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  pseu- 
donym, 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.  ;^y']  :  "  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  ot 
Israel,  and  their  horsemen.  And  he  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. 


*  It  is  almost  the  first  time  that  we  have  translated  against  our  method,  an- 
nounced in  the  third  of  the  explanatory  remarks  on  back  of  title  pages,  the  reason  of 
which  we  hope  the  reader  will  understand. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).          177 

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 
again,  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  sup- 
posed, as  it  reads  [ibid.,  ibid.,  19]  :  "  And  it  came  to  pass,  when 
King  Hezekiah  heard  it,  that  he  rent  his  clothes."  Hence 
He/ekiah  rent,  but  they  who  told  him  did  not  rend  again. 

R.  Jehudah  said  in  the  name  of  Samuel :  If  one  hears  a  blas- 
phemy 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  satne,"  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  blas- 
phemy, however,  in  which  it  is  impossible  that  the  second  wit- 
ness 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  VIL:  He  is  considered  an  idolater  who  worships 


178  THE    BABYLONIAN"    TALMUD. 

it  w-ith  its  proper  *  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  \\-ithout  any  other 
act.  And  also  if  he  only  says :  Thou  art  my  god.  However, 
he  who  arms,  kisses,  \\-ipes  the  dirt,  sprinkles  water,  washes, 
anoints,  dresses,  or  shoes  it,  transgresses  a  negative  command- 
ment [Ex.  XX.  5].  He  who  vows  or  determines  in  its  name 
transgresses  also  a  negative  commandment  [ibid,  xxiii.  13]. 
He  who  uncovers  liimself  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  mcrcidis  (liennaeon) — that  is  the 
way  of  worshipping  it  (and  he  is  guilty). 

GEMAR_\:  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  -tt-ine?  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  guilt}-.  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  wor- 
shipping which  takes  place  inside  of  the  sanctuan,-.  Whence, 
then,  do  we  know  that  bowing  is  also  considered?  From 
[Deut.  x\-ii.  3]  :  "  And  he  hath  gone  and  served  other  gods  and 
bowed t  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 
bov^-ing,  therefore  sacrificing  was  specified,  to  show  that  noth- 
ing is  to  be  inferred  from  bowing,  and  also  to  teach  that  as  a 
distinction  is  made  concerning  the  worshipping  inside  of  the 
sanctuan,-.  the  same  is  the  case  with  all  other  worshippings 
which  are  used  inside — ^if  with  such  one  has  worshipped  an  idol, 

*  This  is  explained  in  the  Gemara  by  R.  Jeremiah. 

f  Leeser  has  omitted  this  ;  we  do  not  know  the  reason  why. 


TR.\CT    SANHEDRIN   (SUPREME   COUNXIL>.         179 

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  5acrincing  out  of  the  sanctuarj-.  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  con- 
sidered, 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  wor- 
shipping 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.  xiL  30]  :  "  How- 
did  these  nations  serve  their  god  ?  "  -\nd  lest  one  say  thai  one 
who  imcovers  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  dis- 
grace, is  not  considered  a  worship?  Say — to  exclude  the  one 
who  tmcovers  himself  for  Merculis.  And  lest  one  say  that  as 
the  kind  of  worship  of  Merculis  15  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  guiltv"? 
From  [Lev.  x\-ii.  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  bring- 
ing an  offering  to  an  idol  of  which  the  kind  of  worshipping  is 
not  sacrificing.     Now,  as  from  bowing  is  inferred  all  kinds  of 


i8o  THE   BABYLONIAN    TALMUD. 

worshipping  which  are  of  honor,  so  one  is  hable  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  MercuHs,  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  wor- 
ship " — 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  dififer  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.  4]  :  "  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  deliber- 
ating, 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  un- 
less 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 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         i8i 

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,  see- 
ing 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  indi- 
vidual 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  con- 
tradictory Mishnayoth,  that  one  speaks  of  when  he  has  se- 
duced himself — therefore  he  is  not  culpable  unless  he  wor- 
shipped, 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  in- 
formed. 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 


i82  THE    BABYLONIAN    TALMUD. 

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  apos- 
tate, 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  ac- 
cording 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  "  wor- 
shipped," without  specifying  the  kind,  means  for  love  or  for 
fear.  Rabha,  however,  maintains  that  the  Mishna  is  to  be  ex- 
plained 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  wor- 
shipped like  Haman?  "  therefore  it  reads :  "  Thou  shalt  not  wor- 
ship them."  Now,  Haman  was  worshipped  for  fear.  We  see, 
then,  that  such  a  worship  is  considered.  Rabha,  however,  ex- 
plains 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  de- 
cree of  Rabbi.  Now,  let  us  see !  What  means,  "  he  acted  un- 
intentionally "  ?  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  as  a  god,  then  he  has  acted  intention- 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         183 

ally  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 
sarificed,  smoked  incense,  poured  wine,  and  bowed  himself  be- 
fore 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  col- 
lege (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,  p.  000).  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  trans- 
gresses only  a  negative  commandment,  to  which  capital  punish- 
ment 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  com- 
mandments 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-ofTering. 

R.  Ami  said:  If  one  has  worshipped  by  all  three  worships — 


i84  THE    BABYLONIAN   TALMUD. 

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  wor- 
ship 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  Hkewise"?  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  under- 
stood that  the  rabbis  do?  Rabh  also  means  to  say  in  accord- 
ance with  R.  Aqiba.  But  is  this  not  self-evident?  Does  not 
R.  Aqiba  say  that  even  an  unintentional  blasphemer  is  also 
Hable  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  sacri- 
ficed unto  it,"  etc. 

R.  Johanan  said :   If  not  for  the  Vav  in  the  word  "  he- 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         185 

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.  How- 
ever, 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  tradi- 
tion :  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  Pales- 
tine, he  said  in  the  name  of  R.  Elazar  that  one  is  not  punisheu 
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  in- 
volved, 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  re- 
main until  morning,  and  that  which  remaineth  of  it  until  morn- 
ing ye  shall  burn  with  fire."  Hence  the  Scripture  came  to  give 
a  positive  commandment  (ye  shall  burn)  after  a  negative  com- 
mandment (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  warn- 


i86  THE    BABYLONIAN    TALMUD. 

ing  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  partner- 
ship 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  men- 
tion "?  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  re- 
covered 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  sufifer  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 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         187 

throws  a  stone  at  Merculis,  although  with  the  intention  of  ston- 
ing 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  Mer- 
culis, 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  in- 
tention 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?*  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.  21]  :  "  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  term  for  king  in  Hebrew  is  meUch. 


t88  the    BABYLONIAN    TALMUD. 

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.  lo]  :  ''  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?  Be- 
cause 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  [3]  and  ends 
with  verse  four  [4].  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,  how- 
ever, maintains :  To  Molech,  but  not  to  others. 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         189 

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  atten- 
tion to  the  word  "  bkho  "  ?  Is  there  not  a  Mishna  in  Middle 
Gate  (p.  000) :  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  usu- 
ally; 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  be- 
fore 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.  31]  : 
"  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?  There- 
fore the  expression  [in  30]  means  from  this  world,  and  the 
term  "  hekorath  "  means  from  the  world  to  come;  and  the  ex- 
pression "  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  omittedYidouim,  etc.  ?  (The  discussion  here  is  a  repe- 
tition 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  wlui 
brings  up  the  dead,  and  one  who  questions  a  dead  head.     lie 


I90  THE    BABYLONIAN    TALMUD. 

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  an- 
swered: 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  Sab- 
bath; 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. 
X Exclaimed  R.  Zera:  I  see  that  thou  wast  created  by  one  of  our 
colleagues.      It   is   beter   that   thou   shouldst   be   returned   to 


TRACT    SANHEDRIN  (SUPREME    COUNCIL).         191 

the  earth  from  which  thou  wast  taken.  R.  Hanina  and  R. 
Oshia  were  acustomed  to  sit  every  eve  of  Sabbath  studying 
the  book  of  creation,  and  create  a  calf  hke  that  of  the  third 
offspring  of  a  Hving  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  Sab- 
batic 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  col- 
lector :  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  Hable  to  korath  if  done  intentionally,  and  to  a  sin 
ofifering  if  unintentionally. 

GEMARA:  From  this  we  see  that  there  are  violations  of 
Sabbath  to  which  neither  korath  nor  a  sin-ofifering  apply.  What 
are  they?  The  limit  of  the  cities  (Te'humi),  in  accordance  with 
R.  Aqiba;  and  kindhng,  according  to  R.  Jose. 

MISHNA  XL:  He  who  curses  his  father  or  mother  is  not 
punished  v/ith  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  re- 
peated "  the  holy  name  "  ?     It  should  read :  "  If  he  blaspheme," 


192 


THE    BABYLONIAN    TALMUD. 


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  her- 
maphrodite, 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  to- 
gether, and  also  one  or  the  other ;  and  in  such  a  case  the  applica- 
bility 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  com- 
manded 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,  con- 
cerning this  it  reads  [Lev.  xix.  14]  :  "  Thou  shalt  not  curse 
the  deaf " — from  which  we  see  that  the  verse  speaks  of  the  un- 
fortunates of  "  thy  people."     And  lest  one  say  that  this  is  also 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).        193 

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  if  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  sufBce.  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  com- 
mon, and  means  "  judges."  So  R.  Ishmael.  R.  Aqiba,  how- 
ever, 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  pas- 
sage (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  warn- 
ing 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  ex- 
pressed "  tekhal  "  with  one  Lamed. 

MISHNA  XL:  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  mesengers  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, 


194  THE    BABYLONIAN    TALMUD. 

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  ston- 
ing only.  But  is  it  not  written  [ibid.,  ibid.  22]  :  "  Shall  both  of 
them  die,"  which  is  explained  elsewhere,  that  it  means,  pro- 
vided 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  dififer.  "  Both  shall  die  "  means,  pro- 
vided both  were  alike  concerning  age.  So  R.  Jashia.  R. 
Jonathan,  however,  said:  From  the  verse  [25]  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,  how- 
ever, maintains  that  only  the  first  one  is  to  be  stoned,  and  all 
the  others  clioked,  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.  Josepfh,  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  profana- 
tion 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 


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195 


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  bib- 
lically, 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  adivce,  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  wit- 
nesses who  are  hidden  behind  the  fence  may  bring  him  to  court 
and  stone  him. 

A  seducer  is  considered  he  w^ho  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  in- 
cense 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  com- 
moner. 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,  how- 
ever, said :  Choking.  To  the  misleader  of  a  misled  town,  ston- 
ing applies;  according  to  R.  Simeon,  choking.  How,  then,  will 
be  understood  the  succeeding  Mishna,  which  states:  A  mis- 
leader  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  accord- 
ance 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 


196  THE    BABYLONIAN    TALMUD. 

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  com- 
moner," does  not  mean  to  exclude  a  prophet,  as  it  was  sup- 
posed, 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  cham- 
ber 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  enchant- 
ment— 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  cucum- 
bers 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  con- 
jurer," 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  appHes  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  fe- 
male), 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  pre- 
scribed, while  according  to  your  analogy,  Israel  from  the  de- 
scendants of  Noah  should  be  inferred,  and  there  is  only  one 
death  prescribed  for  descendants  of  Noah.     Ben  Azai,  how- 


TRACT    SANHEDRIN    (SUPREiME   COUNCIL). 


197 


ever,  said;  Ex.  xxii.  17  is  to  be  inferred  from  the  next  verse 
[18]  :  "Whosoever  heth  with  a  beast,"  etc.  As  to  this  ston- 
ing- appHes,  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  consid- 
ered 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  be- 
neath 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  afTect  even  against  heavenly  de- 
crees? 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  witch- 
craft). Said  Abayi :  A  conjurer  who  is  particular  to  use  a  uten- 
sil, it  is  by  a  demon,  and  he  who  is  not  particular,  it  is  by  witch- 
craft. 

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  accus- 
tomed to  create  a  calf,  etc. 

Said  R.  Ashi :  I  have  seen  the  father  of  a  certain  man  Kama 


198  THE    BABYLONIAN    TALMUD. 

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  ofT  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  came  (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  hap- 
pened 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.  An.d  her  associate,  who  recognized  the  witch- 
craft 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  dififer.  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  be- 
came 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.*     His  father  re- 

*  See  our  "Phylacterien  Ritus,"  p.  49,  footnotes. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         199 

buked  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  him- 
self 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  Sab- 
bath, while  so  long  as  they  have  not  as  yet  prepared  other 
things  for  Sabbath,  w^hich  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  wis- 
dom 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  in- 
serted 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  some- 
thing 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  there- 
after, however,  he  learned  this  from  R.  Jehoshua  thoroughly, 
and  it  remained  in  his  mind.     But  how  could  he  do  so?     Have 


200  THE    BABYLONIAN    TALMUD. 

we  not  learned  in  a  Mishna  that  he  who  does  an  act  with  witch- 
craft 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. 


CHAPTER    VIII. 

RULES  AND  REGULATIONS  CONCERNING  A  STUBBORN  AND  REBELLIOUS 
SON.  AT  WHAT  AGE  AND  WHAT  HAS  HE  TO  DO  TO  BE  CHARGED 
AS  SUCH?  HOW  IS  IT  IF  e.g.,  HIS  FATHER  CONDEMNS  HIM,  BUT 
NOT  HIS  MOTHER,  OR  vice  Versa.  IF  ONE  OF  HIS  PARENTS  WERE 
LAME  OR  BLIND,  ETC.  IF  HE  RUNS  AWAY  BEFORE  THE  DECISION 
WAS  RENDERED.  CONCERNING  BURGLARY  AND  IF  A  BURGLAR 
DESERVES  CAPITAL  PUNISHMENT,  MUST  PAY  THE  DAMAGE  CAUSED 
BY    BREAKING    IN. 

MISHNA  /. :  A  stubborn  and  rebellious  son — at  what  age 
may  he  be  considered  such?  From  the  time  he  brings  forth 
two  hairs  till  they  encompass  the  face:  it  does  not  mean  the 
chin,  but  the  bottom  (pubes);  but  the  sages  used  to  speak  with 
delicacy. 

It  reads  [Deut.  xxi.  i8]  :  "  If  a  man  have  a  stubborn  and 
rebellious  son,"  etc.  A  son,  and  not  a  daughter;  a  son,  but 
not  a  mature  man.  However,  a  minor  is  free  from  such  a 
charge,  as  the  commandment's  obligation  does  not  as  yet  rest 
upon  him. 

GEMARA:  Whence  do  we  know  that  a  minor  is  free? 
Whence  do  we  know !  Does  not  the  Mishna  give  the  reason, 
"  because  the  commandment's  obligation  does  not  as  yet  rest 
upon  him."  And  secondly,  where  do  we  find  that  the  Scrip- 
ture has  made  a  minor  liable,  so  that  in  this  case  it  is  neces- 
sary to  free  such?  We  mean  to  say  thus:  Is,  then,  the  punish- 
ment of  a  stubborn  son  because  of  his  sins?  He  is  punished 
because  of  his  future  (as  will  be  explained  farther  on).  Then 
it  would  be  supposed  that  the  same  is  the  case  even  when  he  is 
still  a  minor.  And  again,  the  Mishna  itself  states,  "  a  son,  but 
not  a  mature  man."  And  if  it  did  not  explain  thereafter  that 
a  minor  is  free,  we  mig^t  say  that  a  minor  is  also  included. 
Said  R.  Jehudah  in  the  name  of  Rabh :  It  reads:  "  If  a  man  has 
a  son,"  which  means  a  son  who  has  grown  up  almost  to  matur- 
ity. 

"  Till  they  surround''  etc.     R.  Hisda  said :  A  minor  who  has 


202  THE    BABYLONIAN    TALMUD. 

born  a  son — the  latter  does  not  become  a  rebellious  son :  which 
means,  when  a  man  has  a  son,  but  not  a  son  who  has  a  son. 
But  was  not  what  R.  Jehudah  said  in  the  name  of  Rabh  inferred 
from  the  same  verse?  It  should  read,  "  If  there  shall  be  a  son 
to  a  man." 

And  from  what  is  written,  "  when  a  man  has  a  son,"  we  infer 
also  what  R.  Hisda  said.  However,  he  dififers  with  Rabha, 
who  said  elsewhere  that  a  minor  cannot  beget  children.  As 
it  reads  [Num.  v.  8]  :  "  But  if  a  man  have  no  kinsman."  And 
to  the  question :  Is  it  possible  that  a  man  in  Israel  should  have 
no  kinsman?  it  was  said  that  the  verse  speaks  about  the  rob- 
bery of  a  proselyte  (who  has  no  kinsman  in  Israel).  But  why 
does  the  Scripture  mention  a  man?  It  should  read,  "if  he 
has  no  kinsman,"  to  teach  that  if  the  proselyte  was  already  a 
man  you  have  to  inquire;  for  perhaps  he  has  begotten  chil- 
dren, and  thus  has  kinsmen.  But  if  he  was  a  minor,  you  have 
not  to  inquire,  as  a  minor  cannot  beget  children.  Abayi  ob- 
jected to  him  from  [Lev.  xix.  20]  :  "  And  if  a  man  He,"  etc. — 
as  to  which  a  Boraitha  states,  "  A  man !  "  But  whence  do  we 
know  that  the  same  is  the  case  with  a  minor  after  the  age  of 
nine  years  and  one  day,  who  is  already  fit  to  have  connection 
with  a  woman?  Therefore  it  is  written,  "and  if  a  man,"  to 
add  the  minor  just  mentioned.  (Hence  we  see  that  such  is 
already  fit  to  beget  children.)  Rejoined  Rabha:  He  is  fit  to 
have  connection,  but  not  to  beget  children,  wliich  is  equalized 
to  grain  which  has  not  as  yet  grown  up  to  a  third  of  its  usual 
growth;  and  if  such  were  sown,  it  would  not  reproduce.  Is 
this  so?  Did  not  the  disciples  of  R.  Ishmael  teach:  It  is  writ- 
ten, "a  son";  but  not  when  he  is  a  father.  Now  let  us  see 
how  was^the  case.  Shall  we  assume  that  his  wife  was  pregnant 
just  after  he  grew  two  hairs,  and  that  he  begot  the  child  be- 
fore the  above-mentioned  encompassing  was  completed.  Has 
she,  then,  so  much  time?  Did  not  R.  Khruspdai  say  that  the 
prescribed  time  for  a  rebellious  son  is  only  three  months  ?  You 
must  then  say  she  was  pregnant  before  he  grew  two  hairs,  and 
begot  a  child  before  the  encompassing  was  complete.  Hence 
we  see  that  a  minor  begets  children?  Nay!  she  was  pregnant 
after  he  grew  two  hairs,  and  begot  after  the  encompassing. 
And  the  difficulty  about  what  was  said  by  Khruspdai  was  ex- 
plained by  R.  Dimi  after  his  return  from  Palestine  thus:  In 
tha  West  it  was  said,  "  a  son,"  but  not  one  who  is  fit  to  be 
called  a  father,  as  he  has  already  a  pregnant  wife. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  203 

The  text  says :  Khruspclai  in  the  name  of  R.  Sabatta  said : 
The  time  for  a  rebelhoiis  son  is  only  three  months.  We,  how- 
ever, have  learned  in  a  Mishna  that  the  prescribed  time  is  from 
when  he  grows  two  hairs  until  the  encompassing  is  complete. 
However,  if  the  completion  was  before  three  months,  the  time 
has  already  elapsed ;  and  the  same  is  the  case  when  the  encom- 
passing was  not  completed  after  the  three  months  had  elapsed. 

R.  Jacob  of  the  city  of  Nhar  Pauqud  was  sitting  before 
Rabhina,  and  said  in  the  name  of  R.  Huna  b.  Jehoshua:  From 
Khruspdai's  theory  we  may  infer  that  a  woman  who  bears  in 
the  seventh  month  cannot  be  recognized  as  pregnant  after  the 
first  third  of  her  pregnancy.  For  if  it  were  so,  why  was  it  said 
in  the  West  that  he  is  fit  to  become  a  father  after  three  months 
— would  not  two  and  a  third  suffice,  as  then  the  pregnancy  is 
already  recognizable?  Answered  Rabhina:  This  cannot  be 
taken  as  evident,  as  the  majority  do  not  bear  children  in  the 
seventh  month,  but  in  the  ninth.  All  this  was  declared  to  R. 
Huna  b.  Jehoshua,  and  the  latter  exclaimed :  Do  we,  then,  con- 
sider a  majority  in  criminal  cases?  The  Torah  says:  "The 
congregation  shall  judge,  the  congregation  shall  save  "  ;  and 
you  say  that  we  shall  go  after  a  majority.  His  answer  was 
brought  back  to  Rabhina,  to  which  the  latter  replied :  Is  it  in- 
deed so — that  we  do  not  consider  a  majority  in  criminal  cases? 
Have  we  not  learned  in  a  Mishna  that  if  one  witness  says  it 
was  in  the  second  of  the  month  and  the  other  says  that  it  was 
on  the  third,  their  testimony  is  valid,  since  to  one  the  inter- 
calation of  the  month  was  known,  but  not  to  the  other.  Now, 
if  a  majority  which  does  not  know  of  the  intercalation  should 
not  be  considered,  why  should  their  testimony  be  valid?  Say 
they  are  aware  of  it,  but  they  contradict  each  other!  Hence 
we  must  say  that  the  majority  is  considered. 

R.  Ahiah  b.  Rabba  b.  Nahmani  in  the  name  of  R.  Hisda, 
according  to  others  the  latter  in  the  name  of  Zeeli,  said:  All 
agree  that  a  minor  of  nine  years  and  one  day  is  fit  to  have 
connection  with  a  woman,  and  in  a  case  of  adultery  it  is  con- 
sidered; and  they  agree  also  that  at  less  than  eight  years  of 
age  one  is  not  fit,  and  it  is  not  considered.  And  the  point  of 
their  difference  is  from  the  age  of  eight  up. 

The  school  of  Shammai  holds :  We  may  infer  from  the  first 
generation.     And  the  school  of  Hillel  holds :  We  may  not. 

And  whence  do  we  know  that  the  first  generation  produced 
children  at  the  age  of  eight?     From  [Gen.  xi.  27] :  "  Now  these 


204  THE    BABYLONIAN    TALMUD. 

are  the  generations  of  Therach :  Therach  begat  Abram,  Nachor, 
and  Charan."  Abram  was  one  year  older  than  Nachor,  and 
Nachor  was  one  year  older  than  Charan.  And  it  reads  [ibid., 
ibid.  29]:  "And  Abram  and  Nachor  took  themselves  wives: 
the  name  of  Abram's  wife  was  Sarai;  and  the  name  of  Nachor's 
wife  was  Milcah,  the  daughter  of  Charan,  the  father  of  Milcah, 
and  the  father  of  Yiscah."  And  R.  Itz'hak  said:  There  is  a 
tradition  that  Yiscah  is  identical  with  Sarai.  Now,  how  much 
was  Abram  older  than  Sarai  ?  Ten  years.  And  how  much  was 
he  older  than  her  father?  Two  years.  Hence,  when  Charan 
bore  Sarai  he  was  eight  years.  But  perhaps  Abram  was  the 
younger,  and  the  enumeration  in  Scripture  is  not  particular, 
being  according  to  their  wisdom.  And  that  the  Scripture 
used  to  enumerate  according  to  wisdom,  and  not  age,  may  be 
seen  from  [ibid.  vi.  10]  :  "  And  Noah  begat  three  sons — Shem, 
Ham.  and  Japheth."  And  from  the  latter  passage  it  is  inferred 
that  Shem  was  the  youngest,  and  nevertheless  he  is  named  first, 
because  of  his  wisdom.  Said  R.  Kahana:  I  told  this  to  R. 
Zebith  of  Nahardea,  and  he  answered:  Ye  learned  this  from 
the  cited  passage.  We,  however,  infer  this  from  [ibid.  x.  21]  : 
''  But  unto  Shem  also,  the  father  of  all  the  children  of  Elier, 
the  brother  of  Japheth  the  elder."  Hence  we  see  that  Japheth 
was  the  oldest  of  all  the  brothers. 

Now  the  question,  "  Whence  do  we  know  that  the  first  gen- 
erations produced  children  at  eight  years?"  still  remains  un- 
answered. This  is  to  be  inferred  from  the  following.  It  reads 
[Ex.  XXXV.  30]  :  "  And  Moses  said  unto  the  children  of  Israel, 
See,  the  Lord  hath  called  by  name  Bezaleel  the  son  of  Uri,  the 
son  of  Chur,  of  the  tribe  of  Judah  " :  and  in  I.  Chron.  ii.  19,  20, 
it  reads  :^  "  And  when  Azubah  (the  wife  of  Caleb)  died,  Caleb 
took  unto  himself  Ephrath,  \\4io  bore  unto  him  Chur.  And 
Chur  begat  Uri,  and  Uri  begat  Bezaleel."  And  when  Bezaleel 
was  engaged  in  building  the  Tabernacle,  he  was  at  least  thir- 
teen years  old.  As  it  reads  [Ex.  xxxvi.  4]  :  "  Every  man  from 
his  own  work  which  they  were  doing  ";  and  one  is  not  called  a 
man  before  the  age  of  thirteen.  And  there  is  a  Boraitha :  The 
first  year  Moses  prepared  all  that  was  necessary  for  the  Taber- 
nacle, and  in  the  second  year  he  erected  it  and  sent  the  spies. 
And  it  reads  [Joshua,  xiv.  7]  :  "  Forty  years  old  was  I  when 
Moses  the  servant  of  the  Lord  sent  me  ";  and  [ibid.,  ibid.  10]  : 
"  Behold,  I  am  this  day  eighty  and  five  years  old."  Now,  take 
ofif  fourteen,  the  age  of  Bezaleel  from  the  forty  of  Joshua  when 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         205 

he  was  sent  as  a  spy,  and  there  remain  twenty-six ;  take  off  two 
years  for  the  three  pregnancies  with  Uri,  Chur,  and  Bezaleel, 
and  there  remain  twenty-four.  Hence  each  of  them  produced 
at  the  age  of  eight. 

''A  son,  and  not  a  douglitcr,^'  etc.  There  is  a  Boraitha:  R. 
Simeon  said :  According  to  common  sense,  a  daughter  should 
be  more  open  to  the  charges  of  stubbornness  and  rebelhous- 
ness,  as  it  is  to  be  supposed  that  her  future  will  be  to  stand  in 
the  way  and  entice  men  to  sin.  But  so  is  the  decree  of  the 
Scripture — "  a  son,  and  not  a  daughter." 

MISHNA  //. :  When  does  such  become  guilty?  When  he 
consumes  arpi  trjixopiov  of  meat  and  drinks  half  a  lug  of  Italian 
wine.  R.  Jose,  however,  maintains:  Meat  not  less  than  a 
manna,  and  wine  not  less  than  a  whole  lug.  If,  however,  he 
ate  at  a  banquet  of  a  meritorious  society,  or  at  the  intercala- 
tion of  a  month,  or  at  second  tithe  in  Jerusalem ;  or  he  ate  car- 
casses, illegal  meat,  or  reptiles,  and  second  tithe  and  conse- 
crated things  which  were  not  redeemed,  or  mixed  grain  of  first 
tithe  from  which  the  heave-offering  was  not  separated.  There 
is  a  rule :  If  he  ate  a  thing  which  is  meritorious,  or,  on  the 
contrary,  a  thing  which  is  a  transgression — if  he  consumes  any 
kind  of  food  but  not  meat,  any  kind  of  beverages  but  not  wine 
— he  cannot  be  condemned  as  a  stubborn  and  rebellious  son, 
unless  he  eats  meat  and  drinks  wine.  As  it  reads  [Deut.  xxi. 
20]  :  "  He  is  a  glutton  and  a  drunkard."  And  although  there 
is  no  direct  support  in  the  Scripture  that  gluttony  means  meat, 
and  drunkenness,  means  wine,  a  hint  of  this  is  to  be  found  in 
[Prov.  xxiii.  20]  :  "  Be  not  among  those  that  drink  wine,  among 
those  that  overindulge  in  eating  meat."  * 

GEMARA:  R.  Zerah  said:  The  term  "  tertimory "  men- 
tioned in  the  Mishna — I  don't  know  how  much  it  weighs.  But 
from  the  fact  of  R.  Jose  having  doubled  the  measure  of  wine 
from  half  a  lug  to  a  lug,  I  understand  that  he  means  also  to 
double  the  weight  of  meat.  Hence  a  ''  tertimory  "  must  be 
half  a  manna. 

R.  Hanan  b.  Muldha  in  the  name  of  R.  Huna  said:  He  is 
not  guilty  unless  he  consumes  the  meat  and  the  wine  raw.  Is 
that  so?  Did  not  both  Rabha  and  R.  Joseph  say  that  he  who 
consumes  meat  and  wine  raw  is  not  to  be  condemned  as  a  stub- 

*  The  term  in  Hebrew  is  "  zaulel  v'  saube,"  which  Leeser  translates  "a  glutton," 
etc.  In  Proverbs,  however,  he  translates  the  same  term  with  "overindulging,"  which 
also  means  gluttony. 


2o6  THE   BABYLONIAN    TALMUD. 

born  and  rebellious  son  ?  Said  Rabhina :  By  raw  wine  is  meant 
refined  and  not  refined,  and  by  meat  is  meant  cooked  and  un- 
cooked, as  usually  consumed  by  thieves. 

Both  Rabha  and  R.  Joseph  said:  If  he  consumed  salted 
meat  and  drank  wine  from  the  press,  he  cannot  be  condemned 
as  a  stubborn  and  rebellious  son.  What  is  to  be  considered 
salted  meat?  When  it  has  lain  in  salt  for  three  days.  And 
what  is  called  wine  from  the  press?  When  it  is  still  ferment- 
ing. 

R.  Itz'hak  said:  It  reads  [Prov.  xxiii.  31]  :  "  Do  not  look  on 
the  wine  when  it  looketh  red  " — meaning  that  you  shall  not 
look  for  wine  which  makes  red  the  faces  of  the  wicked  in  this 
world,  and  makes  them  pale  in  the  world  to  come.  Rabha 
said :  You  shall  not  look  for  wine  which  causes  bloodshed.* 

When  R.  Dimi  came  from  Palestine,  he  said:  About  the 
verse  [ibid.,  ibid.  29,  30]  :  "  Who  hath  woe?  who  hath  sorrow? 
who  hath  quarrels?  who  hath  complaints?  who  hath  wounds 
without  cause?  who  hath  redness  of  eyes?  They  that  tarry 
late  over  the  wine;  they  that  come  to  seek  for  mixed  drink." 
It  was  said  in  the  West  that  he  who  tries  to  explain  them 
from  their  beginning  to  their  end  is  correct,  and  he  who  tries 
to  explain  them  from  their  end  to  their  beginning  is  also 
correct. t 

Eubar  the  GaHlean  lectured :  Thirteen  vavs  are  enumerated 
in  the  Scripture  concerning  wine,  as  in  Genesis  ix.,  from  20  to 
25,  there  are  thirteen  vavs :  "  And  Noah,  who  was  a  husband- 
man, began  his  work,  and  he  planted  a  vineyard.  And  he 
drank  of  the  wine,  and  became  drunken;  and  he  uncovered 
himself  within  his  tent.  And  Ham,  the  father  of  Canaan,  saw 
the  nakedfiess  of  his  father,  and  told  it  to  his  two  brothers  with- 
out. And  Shem  and  Japheth  took  a  garment,  and  laid  it  upon 
the  shoulders  of  both  of  them,  and  went  backwards,  and  cov- 
ered the  nakedness  of  their  father;  and  their  faces  were  turned 
backwards,  and  they  saw  not  their  father's  nakedness.     And 


*The  term  in  Hebrew  for  "becoming  red"  is  "yithadom,"  and  for  "blood" 
the  term  is  "  dom  "  ;  and  Rabha  divides  "yithadom  "  into  two — yitha,  dom— literally, 
"  will  bring  blood." 

f  Rashi  explains  the  passage  thus  :  From  the  beginning  to  the  end  means, 
"  To  whom  is  woe  ?  "  etc.  To  them  that  tarry  late  over  the  wine.  And  from  the  end 
to  the  beginning  means,  "  For  whom  is  it  right  to  tarry  late  over  wine  ?  "  For  those 
who  are  crying  woe — e.g.,  mourners,  and  those  who  have  quarrels,  and  wounds  with- 
out cause,  and  those  who  have  redness  of  eyes  because  they  are  stout  or  are  idle — 
these  may  drown  their  troubles  in  the  wine. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        207 

Noah  awoke  from  his  wine,  and  discovered  what  his  younger 
son  had  done  unto  him."  * 

R.  Hisda  in  the  name  of  Uqba,  according  to  others  Mar 
Uqba  in  the  name  of  R.  Sakkai,  said :  The  Holy  One,  blessed 
be  He,  said  to  Noah :  "  Noah,  why  didst  thou  not  learn  from 
Adam  the  First  that  all  the  troubles  he  had  were  caused  by 
wine  "?  And  this  is  in  accordance  with  R.  Mair  who  maintains 
that  the  tree  of  whose  fruit  Adam  the  First  partook  was  a  vine. 
As  we  have  learned  in  the  following  Boraitha:  R.  Mair  said  that 
the  tree  of  whose  fruit  Adam  the  First  partook  was  a  vine,  as 
there  is  no  other  thing  which  causes  so  much  lamentation  as 
wine  does.  And  R.  Jehudah  said :  It  was  wheat,  as  a  child  is 
not  able  to  call  mother  or  father  before  it  has  experienced  the 
taste  of  wheat.  R.  Nehemiah  said :  It  was  a  fig-tree,  as  their 
remedy  came  from  the  same  thing  by  which  they  had  trans- 
gressed. For  it  reads  [Gen.  iii.  7]  :  "  And  they  sewed  fig  leaves 
together." 

It  reads  [Prov.  xxxi.  i]  :  "  The  words  of  king  Lemuel,  the 
prophecy  with  which  his  mother  instructed  him."  Said  R. 
Johanan  in  the  name  of  R.  Simeon  b.  Jochai :  Infer  from  this 
that  his  mother  tied  him  to  a  pillar,  saying:  "  What  (hast  thou 
done),  O  my  son?  and  what,  O  son  of  my  body?  and  what,  O 
son  of  my  vows?"  "O  my  son" — all  are  aware  that  thy 
father  has  feared  Heaven,  and  now  that  people  see  thee  going 
in  a  wrong  way,  they  will  say :  "  It  was  caused  by  his  mother." 
"  The  son  of  my  body  "  means :  All  the  wives  of  thy  father 
never  saw  the  king  again  after  their  pregnancy,  which  was  not 
the  case  with  me,  as  I  have  troubled  myself  to  see  him  again 
after  pregnancy,  for  the  purpose  that  my  child  should  be  of 
good  health.  "  The  son  of  my  vows  " — all  the  wives  of  thy 
father  used  to  vow  to  the  sanctuary  for  the  purpose  that  their 
child  should  be  fit  for  the  throne,  and  I  have  vowed  that  my 
son  should  be  full  of  wisdom,  and  fit  for  prophecy.  "  Not  for 
kings,  O  Lemuel,  not  for  kings  (is  it  fitting)  to  drink  wine, 
nor  for  princes  (rausnim)  strong  drink !  "  She  said  to  him : 
"  What  hast  thou  to  do  with  kings  who  drink  wine,  become 
intoxicated,  and  say:  "For  what  purpose  do  we  need  God" 
("  Lomo-el  " — literally,  "  why  God  ")  ?  "  And  to  rausnim 
strong  drink."  Is  it  right  that  he  to  whom  all  the  mysteries 
of  the  world  are  revealed  should  drink  wine  to  intoxication 

*  There  are  sixteen  "  ands"  in  these  passages,  three  of  which,  being  for  connec- 
tion only,  are  excluded. 


2o8  THE    BABYLONIAN    TALMUD. 

— according  to  ethers :  He  to  whose  door  all  the  princes  of  the 
world  are  hastening,  shall  he  drink  wine  to  intoxication  ?  Said 
R.  Itz'hak :  And  whence  do  we  know  that  Solomon  repented  and 
confessed  to  his  mother?  From  [ibid.  xxx.  2]:  "Surely  I 
am  more  brutish  than  any  man,  and  have  not  the  understand- 
ing of  a  common  man."  "  Than  any  man  "  means  Noah.  As 
it  reads  [Gen.  ix.  20]  :  "  And  Noah,  who  was  a  husbandman, 
began  his  work,  and  he  planted  a  vineyard."  "  Of  a  common 
man  "  means  Adam  the  First  (the  term  for  this  in  Hebrew 
being  "  adam  "). 

"  Of  a  meritorious  society''  etc.  Said  R.  Abuhu :  He  is  not 
guilty  unless  he  consumed  the  above-mentioned  meat  and  wine 
with  a  society  of  reckless  persons  (as  then  there  is  no  hope 
that  he  will  depart  from  his  way  after  he  is  bound  to  such  a 
company).  But  does  not  our  Mishna  state  "  a  meritorious 
society" — he  does  not  become  a  stubborn  and  rebellious  son? 
From  which  it  is  to  be  understood  that  if  it  was  not  a  meritori- 
ous one,  he  is  culpable  even  if  not  all  of  the  society  were  reck- 
less men?  The  Mishna  comes  to  teach  us  that  if  it  happened 
that  to  the  meritorious  banquet  were  invited  men  all  reckless, 
he  is  nevertheless  not  culpable,  as  he  was  engaged  in  a  meri- 
torious banquet  and  eating  and  drinking  to  excess  will  not  be- 
come his  habit. 

"  At  the  intercalation  of  the  month,"  etc.  Was  there  then 
used  meat  and  wine  at  the  meal  of  intercalation?  Does  not 
a  Boraitha  state  only  bread  and  peas?  The  Mishna  comes  to 
teach  us  that  although  they  were  used  only  to  bread  and  peas, 
and  one  in  spite  of  this  took  for  this  meal  meat  and  wine,  he 
is  not  culpable,  as  the  meal  was  of  a  meritorious  nature  and  it 
will  not  become  a  habit. 

The  rabbis  taught :  To  the  intercalation  meal  no  less  than 
ten  persons  were  invited,  and  nothing  else  was  used  but  bread 
and  peas;  and  it  was  prepared  only  on  the  thirtieth  day,  and 
not  in  the  daytime  but  at  evening.  But  is  there  not  a  Borai- 
tha, "  not  at  evening  but  in  the  day  "?  As  R.  Hyya  b.  Abbah 
said  to  his  sons :  Try  to  go  to  this  meal  when  it  is  yet  day,  be- 
fore sunset;  and  also  to  leave  before  sunrise,  that  people  shall 
know  that  you  were  engaged  in  a  meal  of  intercalation. 

"  Second  tithe,"  etc.  Because  he  consumed  it  in  the  usual 
way,  it  will  not  become  a  habit. 

"  Carcasses,"  etc.  Said  Rabha :  If  he  has  consumed  meat 
of  fowls,  he  is  not  to  be  charged  as  a  stubborn  son.     But  does 


TRACT   SANHEDRIN   (SUPREME   COUNCIL).        209 

not  our  Mishna  state  "  carcasses,  illegal  meat,"  etc.,  from  which 
it  is  to  be  understood  that  if  it  was  legal  he  is  to  be  charged? 
Our  Mishna  means  that  even  if  he  has  eaten  this  to  complete 
the  prescribed  quantity — e.g.,  he  has  eateen  a  "  tertimory  "  less 
an  eighth,  and  this  eighth  he  ate  from  illegal  meat — he  is  also 
not  culpable,  for  the  reason  stated  farther  on. 

"  A  thing  ivhich  is  meritorious"  etc. — means  a  meal  of  con- 
dolence. 

"  A  transgression  " — means  when  he  ate  on  a  fast  day  of  the 
congregation.  And  what  is  the  reason?  It  reads  [Deut.  xxi. 
20]  :  "  He  will  not  hearken  to  our  voice."  "  Our  voice  " — but 
not  of  him  who  does  not  hearken  to  the  voice  of  the  Omnipo- 
tent. 

"  But  not  meat,"  etc. — means  to  add  even  pressed  figs  of  the 
city  of  Kaela,  which  cause  intoxication. 

"  But  not  zvine  " — means  even  honey  and  milk,  as  we  have 
learned  in  the  following  Boraitha:  If  one  consumed  pressed 
figs  of  Kaela  and  drank  honey  and  milk  and  entered  the  sanc- 
tuary, he  is  culpable  as  to  [Lev.  x.  9]  "  wine  and  strong  drink," 
etc. 

"He  eats  meat  and  drinks  wine,"  etc.  The  rabbis  taught: 
If  he  consumes  any  kind  of  food,  but  not  meat,  any  kind  of 
beverages  but  not  wine,  he  cannot  be  condemned  as  a  stub- 
born and  rebellious  son  unless  he  eats  meat  and  drinks  wine, 
bles,  it  will  not  become  a  habit.  In  the  second  case,  although 
there  is  no  direct  support  in  the  Scripture  that  gluttony  means 
meat  and  wine,  a  hint  to  this  is  to  be  found  in — "  Be  not  among 
those  that  drink  wine,  among  those  that  overindulge  in  eat- 
ing meat."  And  it  is  also  written  [ibid.,  ibid.  21]  :  "  For  the 
drunkard  and  the  glutton  will  come  to  poverty;  and  drowsi- 
ness clotheth  a  man  in  rags."  Said  R.  Zerah :  He  who  sleeps 
in  a  house  of  learning,  his  wisdom  is  rent  to  pieces.  As  it 
reads:  "  And  drowsiness  clotheth  a  man  in  rags." 

MISHNA  ///. :  If  he  has  stolen  from  his  father  and  con- 
sumed on  his  premises,  or  he  has  stolen  from  strangers  and 
has  consumed  on  the  premises  of  still  other  strangers,  or  he  has 
stolen  from  strangers  and  consumed  on  the  premises  of  his 
father,  he  is  not  charged  as  a  stubborn  and  rebellious  son  unless 
he  stole  from  his  father  and  consumed  on  the  premises  of 
strangers.  R.  Jose  b.  Jehudah  maintains :  Unless  he  stole  from 
his  mother  and  father. 

GEMARA :  In  the  first  case,  when  he  stole  from  his  father 


2IO  THE   BABYLONIAN    TALMUD. 

and  consumed  on  the  premises  of  the  father,  because  he  trem- 
bles, it  will  not  become  a  habit.  In  the  second  case,  although 
he  does  not  tremble  after  stealing,  as  it  cannot  be  frequently 
done,  it  will  not  become  a  habit.  From  strangers,  and  consumed 
on  the  premises  of  his  father,  there  are  both,  because  this  can 
be  done  only  occasionally  and  when  consuming  he  trembles  for 
his  father.  Unless  he  stole  from  his  father  and  consumed  on 
the  premises  of  strangers — which  includes  both,  because  it  can 
be  done  frequently  and  without  any  trembling. 

"  From  his  mother,"  etc.  Where  did  his  mother  get  this, 
so  that  it  should  belong  to  her  only?  Is  there  not  a  rule  that 
all  a  woman  buys  belongs  to  her  husband?  Said  R.  Jose  b. 
Hanina:  He  took  it  from  the  meal  which  was  prepared  for  his 
his  father  and  mother.  But  did  not  R.  Hana  b.  Mouldha  in 
the  name  of  R.  Huna  say  that  he  is  not  culpable  unless  he  buys 
meat  and  wine  cheap  and  consumes  them?  Say  that  he  has 
stolen  the  money  which  was  prepared  to  buy  a  meal  for  his 
father  and  mother;  and  if  you  wish,  it  might  be  said  that  some 
one  else  gave  it  to  his  mother,  with  the  condition  that  her  hus- 
band should  have  no  share  in  it. 

MISHNA  IV. :  If  the  father  is  willing  to  transfer  the  case  of 
the  son  in  question  to  the  court  and  the  mother  is  not  willing, 
or  vice  versa,  he  cannot  be  accused  as  a  stubborn  and  rebellious 
son,  unless  both  are  willing  to  do  so.  Furthermore,  R.  Jehudah 
says :  If  his  mother  was  not  fit  to  be  the  wife  of  his  father,  their 
son  cannot  be  charged  as  a  stubborn  and  rebellious  son. 

GEMARA  :  What  does  the  Mishna  mean  by  the  words  "was 
not  fit"?  Shall  we  assume  that  his  father  married  a  woman  who 
was  under  the  liability  of  the  korat,  or  capital  punishment  by 
the  court  ?  Why  ?  After  all,  the  father  is  his  father  and  the 
mother  is  his  mother.  Hence  it  must  mean  that  she  was  like  to 
his  father.  And  so  also  we  have  learned  plainly  in  the  following 
Boraitha  :  R.  Jehudah  said  :  If  his  mother  was  not  alike  to  his 
father  in  her  voice,  in  her  appearance  and  her  height,  he  cannot 
be  charged  as  the  son  in  question.  And  what  is  the  reason? 
Because  it  reads  :  "  He  does  not  hearken  to  her  voice.''  As  we 
see  that  their  voices  must  be  alike,  the  same  is  the  case  with  the 
appearance  and  height.  According  to  whom  is  the  following 
Boraitha?  The  case  of  a  stubborn  and  rebellious  son  never 
existed  and  will  never  occur,  and  it  was  written  only  for  the  pur- 
pose of  studying  and  the  reward  for  it.  It  is  in  accordance  with 
R.  Jehudah  (who  requires  such  things  as  can  never  occur).     And 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         211 

if  you  wish,  it  is  in  accordance  with  R.  Simeon,  who  said  in  the 
following  Boraitha  thus  :  Does  the  law  indeed  dictate  that  because 
this  boy  consumed  a  "  tertimory  "  of  meat  and  drank  half  a  lug  of 
Italian  wine  his  father  and  mother  shall  deliver  him  to  be 
stoned  ?  Hence  such  a  thing  neither  occurred  nor  ever  will  be, 
and  it  is  written  only  for  studying.  R.  Jonathan,  however,  said : 
I  myself  have  seen  such,  and  have  sat  on  his  grave. 

According  to  whom  is  the  Boraitha  that  a  case  of  a  misled 
town  never  occurred  and  will  never  be — and  was  written  only  for 
studying?  In  accordance  with  R.  Eliezer,  who  said  in  the  fol- 
lowing Boraitha  thus  :  A  misled  town  in  which  there  is  to  be 
found  even  one  mezuza  (a  piece  of  parchment  on  which  a  portion 
of  the  Holy  Writ  is  written  to  be  placed  on  the  doorpost)  cannot 
be  condemned  as  misled  town,  because  it  reads  [Deut.  xiii.  17]  : 
"  And  all  its  spoils  shalt  thou  gather  into  the  midst  of  the  market- 
place thereof,  and  thou  shalt  burn  them  with  fire."  And  as  there 
is  a  mezuza  this  cannot  be  done,  as  it  reads  [ibid.  xii.  4]  :  "  Ye 
shall  not  do  so  unto  the  Lord  your  God."  R.  Jonathan,  however, 
said :  I  have  seen  such  and  I  myself  have  sat  on  its  heap. 

According  to  whom  is  the  following  Boraitha?:  A  house  of 
leprosy  never  occurred  and  will  never  be,  and  it  is  written  only 
for  studying,  etc.  In  accordance  with  R.  Elazar  b.  Simeon,  who 
says  in  the  following  Mishna  :  A  house  of  leprosy  cannot  be  con- 
demned unless  the  leprosy  was  of  the  size  of  two  beans  upon  two 
stones  at  the  two  walls  in  the  corner — the  length  of  two  beans  and 
the  width  of  one. 

There  is  a  Boraitha :  R.  Eliezer  b,  Zadok  said  :  There  was  a 
place  within  the  limit  of  the  city  of  Azah  which  was  named  the 
"  ruin  of  leprosy."  And  R.  Simeon,  head  of  the  village  Akhu, 
said  :  It  happened  once  that  I  went  to  Galilee  and  saw  a  place 
which  they  used  to  mark,  saying.  It  was  because  stones  of  leprosy 
were  placed  there. 

MISHNA  V. :  If  one  hand  of  his  father  or  mother  is  missing, 
or  they  limp,  or  are  dumb,  bhnd,  or  mute,  he  cannot  be  con- 
demned as  a  stubborn  son.  As  it  reads  [Deut.  xxi.  19]  :  "  Then 
shall  his  father  and  his  mother  lay  hold  on  him  " — which  cannot 
be  done  with  one  hand.  "  And  bring  him  out."  This  cannot 
be  when  they  limp.  "  And  they  shall  say  " — not  when  they  are 
mutes.  "This  our  son" — not  when  they  are  blind.  "He  will 
not  hearken  " — not  when  they  are  dumb. 

They  must  first  warn  him  in  the  presence  of  two  witnesses 
and  then  bring  him  to  the  court  of  three  judges,  who  punish 


212  THE    BABYLONIAN    TALMUD. 

him  with  stripes.  And  only  then  when  he  offends  again  must  he 
be  tried  before  twenty-three  judges,  but  must  not  be  stoned  un- 
less the  first  three  judges  are  among  the  twenty-three.  As  it 
reads :  "  This  our  son  " — which  means,  this  is  our  son  who  was 
beaten  according  to  your  decision. 

GEMARA :  Infer  from  our  Mishna  that  wherever  the  Scrip- 
ture commands  something,  it  must  be  taken  literally  ?  (See 
above.  Chapter  VL,  p.  ooo.)  With  this  passage  it  is  different, 
as  it  is  entirely  superfluous.  (It  should  read  :  "■  Ye  shall  deliver 
him  at  the  gate  of  that  city,  to  be  stoned.")  But  where  is  it 
written  that  he  must  first  be  beaten  ?  Said  R.  Abuhu :  From 
an  analogy  of  the  expressions  [Deut.  xxi.  i8] :  "And  they 
chastise  him,"  which  same  is  to  be  found  in  ibid  xxii.  i8.  And 
also  from  the  expression  "  son,"  which  same  is  to  be  found  in 
ibid.  xxv.  2,  which  speaks  of  stripes.  "  This  our  son^  But  is 
not  this  verse  needed  for  this  not  when  they  are  blind  ?  It 
should  read  :  "  He  our  son."  Why  "  this  "  ?  To  infer  both 
statements. 

MISHNA  VL  :  If  he  runs  away  before  the  decision  of  con- 
demnation is  rendered  and  the  encompassing  (mentioned  in  the 
first  Mishna)  occurred  afterwards,  he  is  free.  But  if  he  runs 
away  after  the  decision  was  rendered,  the  encompassing  which 
occurs  afterwards  does  not  free  him. 

GEMARA :  R.  Hanina  said  :  A  descendant  of  Noah  who 
blasphemed,  and  thereafter  he  embraced  Judaism,  is  free  from 
capital  punishment,  because  the  law  concerning  him  was  changed 
(for  when  he  was  yet  a  heathen  one  witness  and  one  judge 
sufficed,  while  as  an  Israelite  two  witnesses  and  three  judges  are 
needed).  And  also  capital  punishment  was  changed — as  to  a 
heathen  the  sword  applies,  and  to  an  Israelite  stoning ;  and  as 
he  cannot  be  punished  with  stoning  (for  at  the  commission  of 
the  crime  he  was  yet  a  heathen),  he  is  entirely  free. 

Shall  we  assume  that  our  Mishna,  which  states  that  if  he  runs 
away  before  the  decision  is  rendered  and  the  encompassing  in 
question  occurred  afterwards,  he  is  free,  is  also  because,  there 
being  a  change,  the  punishment  is  also  changed  ?  Nay,  here  it 
is  different ;  because,  if  he  were  to  commit  the  crime  at  the 
time  after  the  encompassing,  capital  punishment  would  not  apply 
at  all.  Should  we  say  that  the  second  case  stated  :  If  he  runs 
away  after  the  decision  was  rendered,  the  encompassing  in 
question  does  not  free  him — forms  an  objection  to  R.  Hanina  ? 
Do  you  wish  that  after  the  decision  was  rendered  the  change 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         213 

should  affect  the  decision  ?  After  the  decision  is  rendered  he  is 
considered  as  dead,  which  changes  cannot  affect. 

Come  and  hear  another  objection  :  A  descendant  of  Noah 
who  killed  his  neighbor  or  committed  a  crime  with  his  neighbor's 
wife,  and  afterwards  he  embraced  Judaism,  he  is  free  from  capital 
punishment.  But  if  he  did  the  same  with  an  Israelite  while  he 
is  yet  a  heathen,  he  is  guilty  even  if,  after  the  crime,  he  becomes 
a  Jew.  And  why?  Say,  because  it  was  a  change,  the  capital 
punishment  should  also  be  changed  ?  It  requires  a  change  in 
both — in  the  trial  and  in  the  kind  of  punishment.  Here,  how- 
ever, the  change  is  only  in  the  trial  (as  said  above),  but  not  in 
the  punishment,  as  either  to  a  heathen  or  an  Israelite  the  sword 
applies. 

MISHNA  VII. :  A  stubborn  and  rebeUious  son  is  tried 
because  of  his  future.  The  Scripture  prefers  that  he  should  die 
innocent,  and  not  be  put  to  death  because  of  his  sins.  For  the 
death  of  the  wicked  is  both  a  benefit  to  them  and  a  benefit  to 
the  world,  while  to  the  upright  it  is  a  misfortune  for  them  and 
for  the  world.  Drinking  and  sleeping  are  a  benefit  to  the 
wicked  and  to  the  world,  while  they  are  so  doing  (do  they  not 
do  harm  to  the  world),  and  the  reverse  is  it  with  the  upright 
(because  when  they  are  drinking  or  sleeping  they  cannot  do  any 
good).  Separation  of  the  wicked  is  also  a  benefit  for  them- 
selves and  for  the  world ;  the  reverse,  however,  is  the  case  with 
the  upright.  The  assembling  of  the  wicked  is  a  misfortune  for 
them  as  well  as  for  the  world,  while  as  to  the  upright  it  is  a 
benefit  for  themselves  and  for  the  world.  The  idleness  of  the 
wicked  is  a  misfortune  for  them  and  for  the  world  (because  in 
the  time  of  their  idleness  they  will  conspire  to  do  harm,  but  the 
repose  of  the  upright  is  a  benefit  for  them  as  well  as  for  the 
world). 

GEMARA  :  There  is  a  Boraitha  :  R.  Jose  the  Galilean  said  : 
Is  it  possible  that  because  this  boy  ate  a  "  tertimory  "  of  meat 
and  drank  half  a  lug  of  Italian  wine  he  shall  be  stoned  ?  But  the 
Torah  foreshadows  the  final  thought  of  the  son  in  question,  as  in 
the  future  he  will  squander  his  father's  property,  and  pursuing 
his  habit,  which  he  will  find  dif^cult,  he  will  proceed  to  rob 
people  in  the  street.  Therefore  the  Torah  said  :  "  He  shall  rather 
die  while  he  is  still  innocent  than  be  put  to  death  because  of  his 
sins,  as  the  death  of  the  wicked  is  a  benefit,"  etc.,  as  stated  above 
in  the  Mishna. 

MISHNA    VIII. :  In  the  case  of  "  breaking  in  "  [Ex.  xii.  i], 


214  THE    BABYLONIAN    TALMUD. 

for  which  there  is  no  liabiHty  if  one  is  killed  by  a  detector,  one  is 
also  punished  because  of  his  future  crimes  {i.e.,  because  of  his 
intention  to  kill  his  opponent,  although  no  crime  involving  capital 
punishment  was  as  yet  committed).  And  therefore,  if  he  broke 
a  barrel  while  breaking  in,  if  according  to  the  laws  he  must  not 
be  killed  when  caught  {e.g.,  a  father  who  breaks  into  the  premises 
of  his  bonj^ho  could  not  have  intended  to  kill  his  son  if  he  made 
opposition,  and  therefore  if  his  son  kills  him  he  is  liable  to  capital 
punishment,  he  must  pay  for  damaging  the  barrel.  But  with  re- 
spect to  other  persons  who,  if  killed  by  the  detector,  would  not 
be  punished,  he  is  free. 

GEMARA  :  Said  Rabha :  The  reason  why  the  Scripture  freed 
the  detector  if  he  killed  the  burglar,  is  because  it  is  certain  that  a 
man  cannot  control  himself  when  he  sees  his  property  taken. 
And  as  the  burglar  must  have  had  the  intention  to  kill  anyone, 
in  such  a  case,  who  should  oppose  him,  the  Scripture  dictates 
that  if  one  comes  to  kill  you,  hasten  to  kill  him  first. 

Rabh  said  :  A  burglar  who  broke  in  and  succeeded  in  taking 
some  utensils  and  escaped,  he  is  free  from  paying  for  the  utensils. 
Why  so  ?  Because  he  acquired  title  to  them  by  his  blood.  Said 
Rabha :  It  seems  to  me  that  Rabh's  decision  was  in  case  he  broke 
the  utensils :  and  as  they  are  no  longer  in  existence,  he  is  free 
from  paying  their  value.  But  if  he  took  them  and  they  still  exist, 
he  must  return  them.  [Says  the  Gemara  :  By  God  !  Rabh's  deci- 
sion was  even  if  they  were  still  in  existence,  and  his  reason  is 
that  if  they  were  taken  by  a  burglar  of  that  class,  the  opponent 
being  guilty  of  shedding  his  blood,  for  which  the  Mishna  makes 
him  liable,  would  he  not  be  responsible  if  the  utensils  were  broken 
or  taken  away  by  force  by  someone  else  ?  He  would  be,  because 
they  were'already  under  his  control.  The  same  is  the  case  with 
an  ordinary  burglar,  as  by  his  blood  he  has  acquired  title  to  them, 
and  therefore  he  is  not  obliged  to  return  them.]  However  [con- 
tinued Rabha],  it  is  not  so,  as  the  Scripture  considers  the  things 
stolen  by  the  burglar  to  be  under  his  control  only  concerning  a 
contingency — i.e.,  if  they  were  taken  away  from  him.  But  the 
Scripture  never  meant  him  to  acquire  title  to  them  when  they  were 
still  in  his  possession,  for  he  is  considered  as  a  borrower. 

It  happened  that  rams  were  stolen  from  Rabha  by  burglary, 
and  thereafter  they  were  returned  to  him  ;  but  he  was  not  willing 
to  accept  them  because  the  above  decision  came  from  the  mouth 
of  Rabh. 

The  rabbis  taught  :  It  reads  [Ex.  xxii.  2]  :  "  If  the  sun  be 


TRACT   SANHEDRIN    (SUPREME   COUNCIL).         215 

risen  upon  him,  there  shall  be  blood  shed  for  him."  What  is 
meant  by  the  sun  being  risen  upon  him  ?  Does  the  sun  rise 
upon  him  only  ?  It  means  therefore  if  it  is  as  clear  to  you  as  the 
sun  that  it  is  impossible  to  be  at  peace  with  him,  then  you  may 
kill  him,  but  not  otherwise.  There  is  another  Boraitha:  If  it  is 
as  clear  to  you  as  the  sun  that  it  is  possible  for  you  to  be  at  peace 
with  him,  then  you  should  not  kill  him;  but  if  not,  you  may. 
Hence  the  Boraithas  contradict  each  other?  It  presents  no  diffi- 
culty :  one  speaks  in  case  a  father  breaks  into  his  son's  house, 
whose  usual  intention  is  not  to  kill  his  son,  and  the  other  case 
speaks  of  the  reverse — namely,  when  the  son  breaks  into  the 
house  of  his  father. 

Rabh  said  :  Anyone  whatsoever  who  should  break  into  my 
house,  I  would  kill  him,  except  R.  Hanina  b.  Shila.  If  it  should 
happen  that  he  should  break  in,  I  would  not  kill  him,  as  I  am 
sure  that  he  would  have  mercy  upon  me  as  a  father  for  his  son. 

The  rabbis  taught  :  The  expression  "  blood  shed  "  mentioned 
in  ibid.,  ibid,  i  and  2  means  that  it  makes  no  difference  whether 
such  a  case  happened  on  week  days  or  on  a  Sabbath.  Let  us 
see  !  The  teaching  that  a  burglar  may  be  killed  even  on  Sabbath 
is  correct,  lest  one  say  as  there  is  a  rule  that  the  execution 
by  the  court  does  not  violate  the  Sabbath  the  same  applies  here. 
But  why  the  teaching  that  the  burglar  must  not  be  killed,  the 
same  being  the  case  if  the  burglary  occurred  on  Sabbath  ?  Even 
on  week  days  he  is  not  to  be  killed  ? 

Said  R.  Shesheth  :  The  teaching  was  needed  in  case  it  hap- 
pened that  while  breaking  in  on  Sabbath  a  heap  of  earth  covered 
him.  If  he  is  of  that  class  who  are  to  be  killed,  then  the  heap 
must  not  be  removed  on  Sabbath ;  if  of  the  other  class,  it  must 
be  done  to  save  the  man,  if  still  alive. 

The  rabbis  taught :  It  reads  "  to  be  smitten  so" — by  any  man 
whatsoever  ;  "  he  die  " — through  any  kind  of  death  possible.  This 
teaching  was  necessary.  Lest  one  say,  only  if  he  were  killed  by 
the  owner,  who  could  not  control  himself ;  but  if  he  were  killed 
by  some  other  detector,  he  is  liable,  it  comes  to  teach  us  that 
the  burglar  is  considered  a  life-seeker,  who  may  be  killed  by 
anyone. 

The  rabbis  taught :  The  text  speaks  only  of  breaking  in — 
whence  can  it  be  proven  that  the  thief  found  on  one's  roof,  in 
one's  yard,  or  in  any  building  whatsoever  may  be  killed  ?  There- 
fore it  reads,  "  If  a  thief  be  found,"  which  means  in  any  place 
whatsoever.    But  if  so,  why  is  the  term  "  breaking  in  "  mentioned  ? 


2i6  THE    BABYLONIAN    TALMUD. 

To  say  that  his  breaking  in  serves  the  place  of  warning  (for  he 
knew  what  he  might  expect). 

Said  R.  Huna:  Even  a  minor  who  seeks  one's  Hfe  may  be 
killed  for  self-protection.  He  holds  that  one  who  seeks  one's  life 
does  not  need  any  warning,  be  he  of  age  or  a  minor. 

R.  Hisda  objected  to  him  from  a  Mishna  (Ohaloth,  VIL,  7) : 
If  the  head  of  a  child  were  already  without  the  womb,  it  must 
not  be  killed  to  save  the  life  of  its  mother  in  case  of  danger,  as 
one's  life  must  not  be  given  for  that  of  another.  And  why  not 
consider  the  child  as  the  seeker  of  the  hfe  of  its  mother,  so  that  it 
shall  be  killed  ?  There  it  is  different,  as  the  child  cannot  intend 
to  seek  the  life  of  its  mother,  and  the  danger  in  question  is  de- 
creed by  Heaven. 

MISHNA  IX. :  The  following  may  be  killed  for  self-protec- 
tion :  He  who  pursues  one  to  kill  him,  and  he  who  pursues  a  be- 
trothed damsel,  or  pursues  a  male  person  to  lie  with  him ;  but  he 
who  pursues  an  animal  for  this  purpose,  or  he  who  intends  to 
commit  idolatry  or  to  violate  the  Sabbath,  must  not  be  killed  be- 
fore the  crime  is  committed. 

GEMARA :  The  rabbis  taught :  Whence  do  we  know  that 
one  may  kill  for  self-protection?  From  [Lev.  xix.  16]:  "Thou 
shall  not  stand  idly  by  the  blood  of  thy  neighbor."  But  how  can 
you  so  infer  from  this  passage  ?  Is  it  not  needed  to  that  of  the 
following  Boraitha:  Whence  do  we  know  that  if  one  sees  his 
neighbor  drowning  in  a  river,  or  a  wild  beast  or  robbers  seize  him, 
he  is  obliged  to  save  him?  From  the  verse  just  cited?  Yea, 
so  it  is.  And  that  one  may  be  killed  in  self-protection,  is  to  be  in- 
ferred by  an  a  fortiori  conclusion  which  is  to  be  drawn  from  "a 
betrothed  damsel."  If  in  this  case,  in  which  one  only  intended 
assault,  the  Torah  says  he  may  be  killed  in  self-protection,  how 
much  the  more  a  seeker  of  life.  But  do  we  then  punish  from  an 
a  fortiori  Q.or\z\\xs\oVi'^  The  school  of  Rabbi  taught  that  this  is 
not  only  an  a  fortiori  conclusion,  but  also  an  analogy.  As  it  reads 
[Deut.  xxii.  26J  :  "As  a  man  riseth  against  his  neighbor  and  strik- 
eth  him  dead,  even  so  is  this  matter."  And  what  have  we  to  learn 
from  the  case  of  a  murder  ?  This  passage  is  intended  to  throw  light 
(on  the  case  of  a  violated  betrothed)  and  is  at  the  same  time  re- 
ceiving light.*  He  compares  a  murder  to  a  betrothed  damsel.  As 
in  case  of  a  damsel  one  may  be  killed  in  self-protection,  the  same 
is  it  in  the  case  of  a  murder. 

*  A  proverbial  phrase  :  "This  one  comes  as  a  teacher  and  turns  out  a  learner  " 
(Jastrow). 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         217 

And  whence  do  we  know  that  so  is  the  case  concerning  a  be- 
trothed damsel?  From  what  was  taught  in  the  school  of  R. 
Ismael.  It  reads  [ibid.  xxi.  27]  :  "  There  would  have  been  none 
to  aid  her" — which  means,  if  there  were  one  he  must  help  her 
under  all  circumstances,  even  to  killing  her  pursuer. 

The  rabbis  taught  in  addition  to  what  is  stated  in  the  Mishna 
concerning  self-protection  :  However,  in  the  pursuing  by  a  high- 
priest  of  a  widow,  or  by  a  common  priest  of  a  divorced  woman, 
or  of  one  with  whom  the  ceremony  of  Halitah  was  performed,  or 
even  in  the  pursuing  of  a  betrothed  damsel  who  had  already  had 
connection  with  some  one,  killing  in  self-protection  is  not  allowed. 
And  R.  Jehudah  said  :  Also,  if  the  damsel  herself  said  to  the 
pursuers  of  her  assaulter :  Let  him  go — although  it  is  to  be 
supposed  that  she  said  so,  only  because  of  fear  lest  the  pursuers 
should  kill  her — he  must  not  be  killed  before  the  crime  was  com- 
mitted. Whence  is  all  this  deduced  ?  From  [ibid.,  ibid.  26]  : 
"  But  unto  the  damsel  shalt  thou  not  do  anything :  there  is  in 
the  damsel  no  sin  worthy  of  death."  It  is  written  "  naar " 
(youth),  and  it  reads  "  naaro  " — from  which  we  infer,  both  him 
who  is  pursuing  a  male  for  the  purpose  of  sin  and  a  betrothed 
damsel.  And  from  the  term  "  sin  "  we  infer  crimes  of  a  kind  to 
which  the  punishment  of  korath  applies ;  and  from  "  worthy  of 
death,"  we  infer  those  who  are  to  be  executed  by  the  court. ^ 

The  Boraitha  states :  R.  Jehudah  said  :  Also  if  the  damsel 
herself  said,  etc.  What  is  the  point  of  their  difference?  Said 
Rabha :  They  differ  in  case  the  damsel  cares  for  her  honor,  but 
without  sacrificing  her  life  for  it.  According  to  the  rabbis  the 
Scripture  cares  for  the  violation  of  her  honor,  and  as  she  also 
cares  for  it,  though  without  life-sacrifice,  she  must  be  saved  even 
by  killing  her  pursuers.  And  according  to  R.  Jehudah,  the 
Scripture  commands  to  kill  him,  only  in  case  the  damsel  herself 
is  willing  to  sacrifice  her  life  for  her  honor,  but  not  otherwise. 

Said  R.  Papa  to  Abayi :  Let  us  see !  In  case  a  high-priest  is 
pursuing  a  widow,  is  not  this  also  a  violation  of  her  honor? 
Why,  then,  is  he  not  to  be  killed  ?  Is  not  the  Scripture  par- 
ticular about  the  honor  of  a  woman  ?  And  Abayi  answered  :  For 
the  honor  of  a  damsel,  who  is  ruined  forever,  the  Scripture  is 
particular  to  save  her  even  to  the  killing  of  the  pursuer,  which  is 
not  the  case  with  a  widow. 

It  says  farther  on,  "  sin  " — meaning  those  who  are  liable  to  be 
punished  with  death.  There  is  a  contradiction  from  the  follow- 
ing :    Among  the  assailants  of   damsels   who   must  pay   a  fine 


2i8  THE    BABYLONIAN    TALMUD. 

besides  the  bodily  punishment,  is  counted  also  one  who  assaults 
his  sister  (the  punishment  for  which  is  korath).  Now,  if  he  is  to 
be  killed  while  pursuing,  he  must  be  counted  in  the  class  subject 
to  capital  punishment.  And  there  is  a  rule  that  he  who  commits 
a  crime  subject  to  capital  punishment  is  absolved  from  paying  a 
fine.  Said  Abayi :  The  Boraitha  which  states  that  he  must  pay 
a  fine  treats  of  a  case  in  which  she  could  be  saved  by  injuring 
one  of  the  members  of  her  pursuer's  body,  and  it  is  in  accordance 
with  R.  Jonathan  b.  Shaul  who  said  in  the  following  Boraitha 
thus  :  A  seeker  of  life  whom  the  pursued  killed,  although  he  was 
able  to  protect  himself  by  injuring  a  member  of  the  pursuer's 
body — it  is  to  be  tried  as  a  case  of  capital  punishment.  And 
what  is  the  reason  of  Jonathan  ?  It  reads  [Ex.  xxi.  22,  23] : 
"  If  men  strive  .  .  .  and  if  any  mischief  follow,  then  shalt 
thou  give  life  for  life."  And  R.  Elazar  said :  The  cited  verses 
treat  about  him  who  intended  to  kill  his  opponent.  And  never- 
theless it  reads  :  "  And  yet  no  further  mischief  follow,  he  shall  be 
surely  punished."  Now,  if  you  say  that  the  law  dictates  that  the 
pursuer  must  not  be  killed  in  case  his  crime  could  be  prevented 
by  injuring  one  of  the  members  of  his  body,  it  is  correct  that  he 
is  to  be  fined.  But  should  you  say  that  even  in  the  latter  case 
there  is  no  liability  if  the  pursuer  was  killed — his  offence  being  in 
the  class  subject  to  capital  punishment — why,  then,  is  he  to  be 
fined  ?  And  should  you  say  that  he  is  fined  because  his  intention 
was  to  kill  another,  and  the  fine  belongs  to  another  person,  we 
understand  from  Rabha's  decision  *  (First  Gate,  pp.  269  and  270) 
that  it  is  not  so. 

"  He  who  pursues  an  animal''  etc.  There  is  a  Boraitha : 
R.  Simeon  b.  Jochai  said :  The  one  who  intends  to  worship  idols 
may  be  killed  (if  there  is  an  impossibility  of  preventing  his  crime 
otherwise).  And  this  is  to  be  drawn  by  an  a  fortiori  conclusion 
thus :  When  the  dishonoring  of  a  commoner  is  to  be  saved  even 
by  kiUing  the  pursuer,  so  much  the  more  because  of  a  heavenly 
dishonor.  But  is  one  to  be  punished  because  of  an  a  fortiori 
conclusion  ?  R.  Simeon  holds  that  so  it  is.  There  is  another 
Boraitha :  R.  Eliezar  b.  Simeon  said  :  The  same  is  the  case  with 
one  who  intends  to  violate  the  Sabbath.  He  holds  with  his 
father,  that  one  may  be  punished  from  a  decision  drawn  from  an 

*  See  p.  269,  third  line  from  the  bottom,  which  begins  :  "  This  decision  of 
Rabha,"  to  Mishna  7,  which  is  here  repeated  literally,  with  the  difference  that  there  it 
is  Rabba  and  here  it  is  Rabha.  Concerning  the  difiference  in  the  names,  see  Thosphat 
Khethuboth,  30*5,  paragraph  beginning  with  the  name  "  R.  Ashi." 


TRACT   SANHEDRIN    (SUPREME    COUNCIL).         219 

a  fortiori  conclusion.  And  he  infers  the  violation  of  Sabbath 
from  the  case  of  idolatry  by  the  analogy  of  the  expression  "  vio- 
lation," which  is  termed  in  Hebrew  "  chillul,"  and  is  to  be  found 
in  both  cases.  Said  R.  Johanan  in  the  name  of  R.  Simeon  b. 
Jehozadok,  in  the  Ethic  of  Beth  Nithza:  "In  the  city  of  Suda 
it  was  voted  and  resolved  that  if  one  were  compelled,  under  threat 
of  being  killed,  to  commit  any  one  of  all  the  crimes  which  are 
mentioned  in  the  Torah,  he  might  commit  it  and  not  be  killed, 
except  idolatry,  adultery,  and  bloodshed."  But  is  not  the  case 
the  same  with  idolatry  as  the  following  Boraitha  states  :  R. 
Ismael  said :  Whence  do  we  know  that,  if  one  were  told  under 
threat  of  being  killed,  to  worship  an  idol,  he  should  rather  wor- 
ship than  be  killed?  From  [Lev.  xviii.  5]:  "He  shall  live  in 
them";  i.e., hut  not  die  in  them.  But  lest  one  say  that  the 
same  is  the  case  when  he  is  told  to  do  so  publicly,  therefore  it 
reads  [ibid.  xxii.  32]  :  "  And  ye  shall  not  profane  my  holy  name ; 
so  that  I  may  be  sanctified."  Hence  we  see  that  privately  he 
may  rather  worship  than  die?  They  (R.  Johanan  and  R.  Simeon 
b.  Jehozadok)  hold  with  R.  Eliezer  who  said  in  the  following 
Boraitha  thus :  It  reads  [Deut.  vi.  5]  :  "  And  thou  shalt  love  the 
Lord  thy  God  with  all  thy  heart,  and  with  all  thy  soul,  and 
with  all  thy  might."  Why,  then,  with  all  thy  soul  and.  with  all 
thy  might — is  not  one  of  them  sufficient  ?  Because  people  are 
of  different  natures.  There  are  among  them  some  who  prize 
their  body  more  than  their  money — for  them  it  is  written,  "  with 
all  thy  soul."  And  there  are  some  others  who  prize  their  money 
more  than  their  body,  and  for  them  it  is  written,  "  with  all  thy 
might  ?  And  from  this  we  infer  that  even  if  one  were  told  to 
commit  idolatry  privately,  he  must  not  do  so,  even  under  threat 
of  being  killed.  This  is  concerning  idolatry.  But  whence  do 
we  know  that  the  same  is  the  case  with  adultery  and  bloodshed. 
From  the  following  Boraitha :  Rabbi  said :  It  reads  [ibid.  xxii. 
26]  :  "  For  as  when  a  man  riseth  against  his  neighbor "  (See 
above,  p.  000).  He  compares  a  murder  to  the  case  of  a  betrothed 
damsel.  As  concerning  a  betrothed  damsel  one  may  be  killed 
to  save  her,  the  same  is  it  in  the  case  of  a  murder.  And  as  con- 
cerning a  murder  one  is  obliged  to  sacrifice  his  own  life  rather 
than  kill  another  by  command,  the  same  is  the  case  with  a  be- 
trothed damsel— she  is  held  to  be  killed  rather  than  be  ravished. 
And  whence  do  we  know  that  in  a  murder  case  one  is  obliged  to 
sacrifice  his  own  life,  etc.  This  is  common  sense.  Thus  it  happened 
to  one  who  came  before  Rabha.     (See  Pcsachim,  p.  37,  line  11.) 


220  THE    BABYLONIAN    TALMUD. 

When  R.  Dimi  came  from  Palestine,  he  said  in  the  name  of 
R.  Johanan  :  All  this  was  said  when  there  was  no  civil  decree  by 
the  government  to  violate  religious  duties ;  but  if  there  was,  one 
must  sacrifice  himself  even  for  a  most  lenient  commandment. 
And  when  Rabbin  came,  he  said  in  the  name  of  the  same  author- 
ity :  Even  when  an  evil  decree  did  not  exist,  he  might  do  so 
privately  ;  but  publicly,  one  must  sacrifice  his  life,  even  for  a  most 
lenient  commandment.  What  is  meant  by  a  most  lenient  com- 
mandment ?  Said  Rabba  b.  R.  Itz'hak  in  the  name  of  Rabh  :  (In 
days  of  religious  persecution  you  must  resist,  even  to  changing 
the  shoe-strap.  And  what  is  to  be  considered  publicly  ?  Said 
R.  Jacob  in  the  name  of  R.  Johanan  :  If  this  is  to  be  done  in  the 
presence  of  no  less  than  ten  Israelites.  R.  Jeremiah  questioned : 
How  is  it  if  there  were  nine  Israelites  and  one  heathen  ?  Come 
and  hear  what  R.  Janai  the  brother  of  R.  Hyya  b.  Aba  taught : 
It  reads  [Lev.  xxii.  32]  :  "  In  the  midst  of  the  children  of  Israel," 
and  [Num.  xvi.  21]  :  "  From  the  midst  of  this  congregation"  ■ 
and  from  the  analogy  of  the  expression  "  midst,"  we  infer  that, 
as  in  the  case  of  Korach  there  were  no  less  than  ten,  and  all 
Israelites,  the  same  is  the  case  with  the  sanctification  in  question. 
But  was  not  Esther  compelled  to  sin  with  Ahassuerus,  in  the 
presence  of  more  than  ten  Israelites?  Said  Rabha  :  In  case  they 
do  it  for  their  own  benefit  it  is  different ;  as,  if  this  were  not  the 
case,  how  could  we  lend  copper  vessels  to  the  Persians  for  the 
purpose  that  they  should  fill  them  in  their  houses  of  worship  with 
live  coals  at  the  time  of  their  holidays  ?  But  as  this  is  for  their 
own  benefit,  it  is  not  considered  a  transgression  ;  and  Rabha  is  in 
accordance  with  his  theory  elsewhere,  that  if  a  heathen  commands 
an  Israelite  to  cut  hay  on  Sabbath  for  his  cattle,  with  threat  of 
killing  him,  he  shall  rather  cut  the  hay  than  be  killed.  But  if  he 
tells  him,  "  Cut  it  and  put  it  in  the  river,"  from  which  we  see  that 
he  wants  only  to  overcome  his  religious  scruples,  it  is  better  for 
him  to  resist  and  be  killed  than  to  comply  with  his  command. 

R.  Ami  was  questioned  :  Is  a  descendant  of  Noah  commanded 
to  sanctify  the  Holy  Name,  or  not  ?  And  Abayi  answered  : 
Come  and  hear !  "  There  were  seven  commandments  which  were 
given  to  the  descendants  of  Noah,"  etc.  Now,  if  they  were  com- 
manded to  sanctify  the  Holy  Name,  there  would  be  eight.  Said 
Rabha  to  him  :  From  this  we  can  infer  nothing,  as  by  the  seven 
commandments  is  meant  all  that  pertains  to  them  (and  sanctify- 
ing the  Holy  Name  pertains  to  the  negative  commandment  of 
idolatry).    However,  how  should  this  question  be  decided  ?    Said 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         221 

Adda  b.  Ahaba:  It  was  said  in  the  college:  It  reads  [II.  Kings 
V.  18  and  19]  :  "  For  this  thing  may  the  Lord  pardon  thy  servant, 
that  when  my  lord  goeth  into  the  house  of  Rimmon  to  prostrate 
himself  there,  and  he  leaneth  on  my  hand,  and  I  prostrate  myself 
also  in  the  house  of  Rimmon,  .  .  .  and  he  said  unto  him.  Go 
in  peace."  Now,  if  a  descendant  of  Noah  were  commanded  con- 
cerning sanctification,  Elisha  would  not  say  to  him,  "  Go  in  peace," 
but  would  keep  silent.  This  also  is  not  a  support,  as  Nah- 
man's  request  was  considered  privately  as  no  Israelites  were 
present.  Said  R.  Jehudah  in  the  name  of  Rabh  :  It  happened 
to  one  that  he  saw  a  woman  and  became  sick  through  his  infatu- 
ation, and  he  consulted  physicians,  who  saw  that  there  was 
no  remedy  for  him  unless  he  had  connection  with  her,  and 
the  sages  decided  that  he  should  rather  die  than  have  connection. 
The  physicians,  however,  said:  "  Let  her  stand  before  him  naked  ; 
perhaps  this  may  do  something  in  his  behalf.  But  even  this  the 
sages  did  not  allow.  Let  her  talk  to  him  behind  a  fence.  Even 
this  the  sages  forbade.  R.  Jacob  b.  Idi  and  Samuel  b.  Na'hmani 
differ.  According  to  one  she  was  a  married  woman,  and  according 
to  the  other  she  was  single.  Single  !  Why  such  strictness  ?  Said 
R.  Papa :  Because  of  the  dishonor  of  her  family,  as  a  daughter 
of  an  Israelite  must  not  be  sold  for  prostitution.  And  R.  Ahbah 
b.  R.  Ika  said :  To  prevent  such  becoming  a  habit  among  the 
daughters  of  Israel.  But  why  did  he  not  marry  her?  Said  R. 
Itz'hak  :  This  would  not  satisfy  him.  As  it  reads  [Prov.  ix.  17]  : 
"  Stolen  waters  are  sweet,  and  bread  of  secrecy  is  pleasant." 


CHAPTER   IX. 

RULES  AND  REGULATIONS  CONCERNING  THOSE  TO  WHOM  BURNING 
AND  THOSE  TO  WHOM  SLAYING  APPLIES.  WHO  IS  CONSIDERED  A 
MURDERER  DESERVING  CAPITAL  PUNISHMENT  AND  WHO  IS  TO  BE 
EXILED.  THOSE  WHO  RECOVERED  AFTER  THEY  WERE  DIAGNOSED 
TO  DIE  ;  KILLING  SOME  OTHER  ONE  INSTEAD  OF  THOSE  WHOM 
HE    HAD    INTENDED. 

MISHNA  /. :  To  the  following  the  punishment  of  burning 
applies :  To  one  who  has  intercourse  with  a  woman  and  her 
daughter,  and  to  a  daughter  of  a  priest  who  has  sinned.  Under 
the  general  rule  of  a  woman  and  her  daughter  comes  his  own 
daughter,  the  granddaughters  of  his  daughter  and  son,  the 
daughter  of  his  wife,  her  granddaughters  of  her  daughter  and 
her  son,  his  mother-in-law,  and  the  mother  of  his  mother  and 
father-in-law. 

GEMARA :  The  Mishna  does  not  state  a  woman  whose 
daughter  he  has  married,  but  "  a  woman  and  her  daughter," 
which  seems  to  be  that  the  intercourse  with  both  of  them  was 
a  sin,  and  this  can  only  be  with  his  mother-in-law  and  her 
mother.  And  from  the  expression,  "  Under  the  general  rule  of 
a  woman  and  her  daughter,"  it  is  to  be  assumed  that  both  are 
mentioned  in  the  Scripture,  which  is  not  so,  as  the  mother  of 
his  mother-in-law  is  only  inferred  from  an  analogy.  Read : 
If  one  has  had  intercourse  with  a  woman  whose  daughter  he  has 
married.  Whence  is  this  deduced  ?  From  what  the  rabbis 
taught :  It  reads  [Lev.  xxi.  4]  :  "  And  if  a  man  take  a  woman 
and  her  mother."  This  is  concerning  a  legal  wife  and  her 
mother.  But  whence  do  we  know  that  the  same  is  the  case 
with  the  illegal  daughter  of  a  ravisher  (referring  to  Deut.  xxii. 
28),  and  her  granddaughters  from  her  daughter  and  her  son  ? 
From  the  analogy  of  the  expression  "  incest "  (zimha),  which  is 
to  be  found  here  in  the  verse  cited  and  also  in  Lev.  xviii.  17. 
And  as  there  it  speaks  of  an  ordinary  woman,  and  it  is  plainly 
mentioned  the  granddaughters  of  her  son  and  daughter,  the  same 
is  the  case  here  (that  all  of  them  must  be  punished  by  burning). 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         223 

And  whence  do  we  know  that  the  males  who  have  committed  the 
crimes  in  question  are  also  to  be  punished  by  burning,  the  same 
as  the  females  ?  Again  from  the  same  analogy  of  the  expression 
zimha.  As  there  the  verse  speaks  of  the  male  perpetrator  of  the 
crime,  so  also  in  the  case  here  we  are  not  to  make  any  difference 
in  the  punishment  between  males  and  females.  And  whence  do 
we  know  that  the  latter  generations — i.e.,  the  daughters  and  the 
granddaughters — are  to  be  equalized  to  the  earlier  generations 
— i.e.,  the  mothers  of  one's  father  and  mother-in-law?  Again 
from  the  analogy  of  the  same  expression.  As  there  the  Scripture 
does  not  make  any  difference  between  the  expression  in  verse 
15,  which  speaks  of  a  father  with  his  daughter-in-law,  and  that 
of  the  seventeenth,  which  speaks  of  the  latter  generations,  and 
at  the  end  of  which  it  reads:  for  they  are  near  kins-" women," 
which  refers  to  all  of  them,  so  here  the  punishment  of  the  earlier 
generations  is  to  be  equalized  to  that  of  the  latter.* 

The  father  of  R.  Abbin  taught :  Because  there  is  no  definite 
commandment  in  the  Scripture  concerning  the  daughter  of  a  rav- 
isher,  it  was  necessary  for  the  scripture  to  state  [Lev.  xxi.  9]. 
"And  if  the  daughter  of  any  priest" — "  esh  cohn,"  instead  of 
"  cohen."  From  which  we  infer  that,  were  she  a  legal  or  an  illegal 
daughter,  if  he  sins  with  her,  she  must  be  burned. 

But  if  so,  let  the  punishmen;  of  burning  apply  only  to  the 
daughter  of  the  abuser,  but  not  to  the  abuser  himself,  as  so  is  the 
case  with  the  daughter  of  a  priest  in  which  the  punishment  ap- 
plies only  to  her,  but  not  to  her  abuser.  Said  Abayi :  Concerning 
the  daughter  of  a  priest  it  reads :  "  Her  father  does  she  profane." 
Exclude  this  case,  in  which  the  father  is  profaning  her.  Rabha, 
however,  said  :  For  this  no  verse  is  necessary,  as  it  is  common 
sense.  In  the  case  of  a  priest's  daughter,  if  you  have  excluded 
her  abuser  from  burning,  he  is  nevertheless  left  under  the  cate- 
gory of  choking,  which  applies  to  any  one  having  intercourse  with 
a  married  woman.  But  here,  if  you  exclude  the  abuser  from  the 
punishment  which  applies  to  her,  under  what  category  can  you 
put  him  ?  Should  you  put  him  under  the  category  of  those  who 
have  had  intercourse  with  single  women,  who  are  free  from  any 

*  It  is  impossible  to  give  a  literal  translation  of  this  Boraitha  with  even  an  abstract 
of  the  explanation  as  discussed  by  the  Amoraim  at  length  in  the  text.  It  is  so  com- 
plicated that  the  Amoraim  themselves  could  not  explain  it  without  correcting  the 
Boraitha  or  without  giving  to  it  an  entirely  strange  interpretation.  As  was  said  by 
Rabha  :  "  In  any  event,  the  analogy  of  expressions  cannot  be  used  without  objections 
and  difficulties."  We  therefore  give  a  free  rendering  of  the  Boraitha,  omitting  the 
discussion. 


224  THE    BABYLONIAN    TALMUD. 

punishment,  is  it  possible  that  she  should  be  burned  for  this 
crime,  and  he  who  is  the  abuser  of  her  mother  and  the  seducer  of 
herself  should  be  free  ?  Now  we  have  had  the  punishment  for 
such,  but  where  is  the  warning  ?  It  is  correct  for  both  Abayi  and 
Rabha  as  they  infer  the  warning  from  the  same  which  states  the 
punishment.  But  according  to  the  father  of  R.  Abbin,  whence 
is  deduced?  Said  R.  Ailea,  from  [Lev.  xix.  29]  :  "  Do  not  profane 
thy  daughter,  to  cause  her  to  be  a  prostitute."  R.  Jacob,  the  brother 
of  R.  Abha  b.  Jacob,  opposed  :  Is  not  the  verse  just  cited  neces- 
sary to  that  of  the  following  Boraitha  :  "  Thou  shalt  not  profane 
thy  daughter,"  etc?  Lest  one  say  that  it  speaks  of  a  priest  who 
marries  his  daughter  to  a  Levite  or  an  Israelite,  therefore  it  reads 
"  to  cause  her  to  be  a  prostitute."  Hence  it  speaks  only  of  him 
who  gives  his  daughter  other  than  in  marriage.  From  the  "  11 " 
in  the  word  "  techallel  "  (profane),  instead  of  "  tochal,"  which 
would  have  the  same  meaning,  the  warning  in  question  may  also 
be  inferred.  And  both  Abayi  and  Rabha,  who  have  inferred  the 
warning  in  this  case  from  the  same  verse  mentioning  the  punish- 
ment— what  do  they  infer  from  the  verse  just  cited  ?  Said  R. 
Mani :  Him  who  marries  his  daughter  to  an  old  man,  as  the  follow- 
ing Boraitha  states:  "You  shall  not  profane  your  daughter," etc. 
According  to  R.  Eliezer :  He  who  marries  his  daughter  to  an  old 
man  is  meant ;  and  according  to  R.  Aqiba,  he  who  leaves  his 
daughter  unmarried  until  she  becomes  "  vigaros." 

R.  Kahana  in  the  name  of  R.  Aqiba  said  :  There  is  none  poor 
in  Israel,  but  a  shrewd-wicked  and  he  who  has  left  his  daughter 
unmarried  until  "vigaros."  How  is  this  to  be  understood ?  Is 
not  one  to  be  called  a  shrewd-wicked  if  he  left  his  daughter 
unmarried  for  his  own  benefit,  that  she  should  do  the  housework 
until  "  vigaros"  ?  Said  Abayi  :  He  means  thus  :  There  is  none 
poorer  than  he  who  is  compelled  because  of  his  poverty  to  leave 
his  daughter  unmarried  until  "  vigaros,"  as  then  he  is  equal  to  a 
shrewd-wicked. 

R.  Kahana  in  the  name  of  R.  Aqiba  said  again  :  Be  careful  in 
your  counsellor  in  order  that  you  shall  not  listen  to  him  who 
counsels  you  for  his  own  benefit. 

R.  Jehudah  said  in  the  name  of  Rabh  :  He  who  marries  his 
daughter  to  an  old  man  and  he  who  marries  his  minor  son  to  a 
woman  of  age  ;  to  both  the  verses  [Deut.  xxix.  18,  19]  :  "  In 
order  that  the  indulgence  of  the  passions  may  appease  the  thirst 
(for  them):  The  Lord  will  not  pardon  him,"  apply. 

The  rabbis  taught  :  Concerning  the  verse  Lev.  xx.  14,  in  which 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         225 

the  words  "  him  and  them  "  are  mentioned,  R.  Ismael  and  R. 
Aqiba  differ.  According  to  the  former  it  means  "  him  and  one 
of  them,"  and  according  to  the  latter,  "  him  and  both  of  them." 
What  is  the  point  of  their  differences  (even  R.  Ismael  agrees  that 
both  of  them  are  to  be  punished)  ?  Said  Abayi :  They  differ 
only  as  to  the  texts  from  which  the  law  is  derived.  According  to 
R.  Ismael,  who  maintains  "  him  and  one  of  them,"  it  is  because 
in  Greek  ev  means  one,  and  the  expression  in  the  passage  is 
"  es'-en."  Hence,  biblically  his  mother-in-law  is  to  be  burned, 
while  her  mother  is  inferred  only  rabbinically  by  an  analogy  of 
expression.  And  according  to  R.  Aqiba  both  of  them  are  meant 
in  this  verse.  Hence  both,  biblically,  are  to  be  burned.  Rabha, 
however,  maintains  that  the  point  of  their  difference  is  an  inter- 
course with  one's  mother-in-law  after  the  death  of  his  wife. 
According  to  R.  Ismael,  even  then  she  must  be  burned,  as  in  the 
verse  cited  it  reads  "  and  them,"  which  makes  no  difference 
whether  his  wife  is  still  alive  or  dead.  And  according  to  R.  Aqiba, 
after  the  death  of  his  wife,  it  is  only  a  prohibition,  but  not  a 
crime  to  which  burning  applies. 

MISHNA  //. :  To  the  following,  punishment  with  the  sword 
applies  :  To  a  murderer  and  the  men  of  a  misled  town.  A  mur- 
derer who  strikes  his  neighbor  with  a  stone  or  with  an  iron  so  that 
he  dies ;  if  one  pressed  down  a  person  while  he  is  in  water  or  in 
fire,  preventing  him  from  coming  out,  until  he  dies — he  is  guilty. 
If,  however,  he  pushes  him  into  water  or  into  fire  and  he  was 
able  to  come  out,  but  nevertheless  dies  without  being  prevented 
by  him  who  pushed  him,  he  is  not  guilty  of  a  capital  crime.  If 
he  sets  a  dog  or  a  serpent  upon  him,  he  is  not  guilty  of  a  capital 
crime.  If,  however,  he  applies  the  snake  to  his  body  with  his 
hand,  and  it  bites  him  to  death,  R.  Jehudah  makes  him  guilty  of 
a  capital  crime,  and  the  sages  free  him. 

GEMARA:  Samuel  said:  Why  is  there  not  mentioned  in 
the  Scripture  the  word  "  yod  "  concerning  iron  in  Num.  xxxv.  16, 
as  is  done  concerning  stones  and  wood  in  ibid.,  ibid.  17,  18?  Be- 
cause even  a  fragment  of  iron  brings  death.  So  also  we  have 
learned  in  a  Boraitha  :  Rabbi  said :  It  is  known  to  Him  who  created 
the  whole  world  by  one  word,  that  a  fragment  of  iron  may  bring 
death,  and  therefore  He  has  not  prescribed  any  size  concerning  iron. 
(Says  the  Gemara  :)  This  is  only  when  he  pierced  him  with  it ;  but 
if  (he  struck  him  with  iron),  it  must  be  of  a  size  to  cause  death. 

"  If  he  presses  down,"  etc.  The  first  part  teaches  a  preponder- 
ance, and  so  does  the  second.     The  preponderance  of  the  first 


226  THE    BABYLONIAN    TALMUD. 

part  is  that,  although  he  did  not  push  him,  but  only  prevented 
him  from  coming  out,  he  is  nevertheless  guilty  of  a  capital 
crime.  And  the  preponderance  of  the  second  part  is  that,  al- 
though he  pushed  him  in,  yet,  so  long  as  the  victim  could  come 
out  and  was  not  prevented,  he  is  not  guilty  of  a  capital  crime. 
But  whence  do  we  know  that  one  is  guilty  for  pressing  down  ? 
Said  Samuel:  From  [ibid.,  ibid.  2i]  :  '^  Or  i{  in  enmtf^  he  have 
smitten  him  with  his  hand,"  which  means  to  include  him  who 
pressed  him  down. 

There  was  one  who  urged  cattle  of  his  neighbor  into  the  sun 
until  they  died.  And  Rabbini  made  him  liable,  but  R.  A'hal 
b.  Rabh  freed  him.  The  former  made  him  liable  because  of  an 
a  fortiori  conclusion  drawn  from  a  murderer.  As  concerning  a 
murderer  the  Scripture  makes  a  difference  between  intentionally 
and  unintentionally,  between  accident  and  premeditation,  and 
nevertheless  makes  guilty  the  presser ;  and  as  concerning 
damages,  where  there  is  no  difference  between  intentionally  and 
unintentionally,  between  accident  and  premeditation,  so  much 
the  more  should  a  pusher  be  liable.  And  as  to  the  reason  of  R. 
A'hal,  who  freed  him,  said  R.  Mesharshia  :  The  reason  of  my 
grandfather,  who  freed  him,  is  the  above-cited  verse :  "  He  that 
smote  him  shall  surely  be  put  to  death,  for  he  is  a  murderer," 
meaning  only  in  case  of  murder  is  one  guilty  of  pressing,  but 
not  in  a  case  of  damages. 

Rabha  said :  If  one  bound  a  person,  and  he  died  thereafter 
of  hunger,  he  is  not  guilty  of  a  capital  crime.  If,  however,  he 
bound  him  and  put  him  in  a  sunny  place,  and  he  dies  because  of 
the  sun,  or  he  puts  him  in  a  cold  place  and  he  dies  of  cold,  he 
is  guilty.  But  if  he  put  him  in  a  sunny  or  a  cold  place,  where 
there  was  not  as  yet  either  sun  or  cold,  and  thereafter,  when  it 
came,  it  caused  his  death,  he  is  not  guilty  of  a  capital  crime. 

The  same  said  again :  If  one  bound  a  person  and  left  him 
before  a  lion,  he  is  not  guilty  of  a  capital  crime.  (Rashi  ex- 
plains that  he  could  not  save  himself  from  the  lion  even  if  he 
were  unbound.  Rashi's  reasons  are  not  quite  clear  to  us.)  But 
if  he  bound  him  in  a  place  where  mosquitoes  are  abundant,  he 
is  guilty.  R.  Ashi,  however,  maintains  that  even  in  the  latter 
case  he  is  not  guilty,  as  the  mosquitoes  which  were  on  his  body 
at  the  time  he  tied  him,  went  away,  and  others  came.  Hence  he 
did  not  cause  his  death  directly. 

It  was  taught  :  If  one  places  a  vat  over  a  person  and  he  dies 
from  heat,  or  he  removes  the  ceiling  to  let  the  cold  come  in, 


TRACT    SANHEDRIN   (SUPREME   COUNCIL).         227 

and  he  dies  from  cold — Rabha  and  R.  Zerah — one  of  them  makes 
him  guilty  and  the  other  frees  him.  Says  the  Gemara  :  It  seems 
that  Rabha  is  the  one  who  frees  him,  as  it  is  in  accordance  with 
his  theory.  Said  above  :  If  one  bound  a  person  and  he  dies  of 
hunger,  he  is  free.  On  the  contrary,  it  seems  R.  Zerah  is  the  one 
that  makes  him  free,  as  it  is  in  accordance  with  his  theory  else- 
where :  He  who  puts  a  person  in  a  house  closed  from  all  sides  so 
that  the  air  cannot  go  out,  and  lights  a  candle,  which  causes  his 
death,  is  guilty.  Hence  we  see  that  the  reason  of  making  him 
liable  is  the  lighting  of  the  candle,  and  if  this  were  not  done  he 
would  be  free  ?  Nay  !  It  may  be  said  that  the  heat  which  caused 
his  death  began  with  the  lighting  of  the  candle.  The  same  is  the 
case  with  the  vat — the  heat  began  just  when  he  turned  it  over  him. 

Rabha  said  again  :  If  one  pushed  a  person  into  an  excavation 
in  which  a  ladder  stood  for  coming  out,  and  someone  came  and 
removed  the  ladder,  or  even  if  he  himself  removed  it  after  he 
pushed  him  in,  he  is  not  guilty  of  a  capital  crime,  as  at  the  time 
he  pushed  him  in  he  was  able  to  come  out. 

The  same  said  again  :  If  one  shot  an  arrow  at  a  person  who 
wore  an  armor  and  someone  removed  the  armor,  or  even  if  he 
himself  removed  it  after  he  shot,  he  is  not  guilty  of  a  capital 
crime,  as  at  the  time  he  shot  the  arrow  it  could  not  injure  him. 

And  he  said  again  :  If  one  shot  an  arrow  at  a  person  who  was 
supplied  with  spices  which  could  cure  the  wounds  from  the  arrow, 
and  someone  came  and  scattered  them,  or  even  if  he  himself 
scattered  them  before  the  arrow  reached  him,  he  is  not  guilty, 
because  the  victim,  at  the  time  he  shot,  could  be  healed  by  the 
spices.  Said  R.  Ashi :  According  to  this  theory  he  would  not  be 
guilty  if  there  should  be  spices  in  the  market  which  could  cure 
the  wounds  ?  Said  R.  Ahbah,  the  son  of  Rabha,  to  R.  Ashi  : 
How  is  the  law  if  it  happened  that  spices  were  brought  to  him 
after  he  was  shot,  and  he  did  not  make  use  of  them  ?  And  he 
answered  :  In  such  a  case  the  court  would  not  overlook  this,  and 
would  accept  the  defence  to  his  advantage. 

Rabha  said  again  :  If  one  throws  a  stone  at  a  wall,  with  the 
intention  of  killing  a  person  with  it,  the  stone,  however,  killing 
the  man  only  by  the  rebounding,  he  is  guilty  of  a  capital  crime. 
In  explanation  of  this,  it  was  taught,  e.g.,  ball-players — if  one 
threw  a  ball  with  the  intention  of  killing  someone,  he  is  to  be  put 
to  death,  and  if  it  was  unintentionally,  he  is  to  be  exiled.  Is  this 
not  self-evident?  The  teaching  that  one  is  to  be  put  to  death,  if 
done  intentionally,  was  necessary.     Lest  one  say  that  such  a 


228  THE    BABYLONIAN    TALMUD. 

warning  was  of  a  doubtful  nature,  as  who  could  predict  that  the 
ball  would  kill  him  by  rebounding  so  that  he  should  be  forewarned 
of  it,  he  comes  to  teach  us  that  he  is  nevertheless  guilty. 

R.  Tachlifa  of  the  West  taught  in  the  presence  of  R.  Abuhu 
concerning  those  who  play  ball :  If  the  ball  killed  one  by  re- 
bounding within  a  distance  of  four  ells  from  the  wall,  he  is  free 
from  exile,  but  if  it  exceeded  four  ells,  he  is  guilty. 

Said  Rabhina  to  R.  Ashi :  Let  us  see,  how  was  the  case !  If 
the  player  was  pleased  with  the  rebounding  of  the  ball,  then  let 
him  be  guilty  if  the  man  was  killed  even  within  a  nearer  distance 
(as  the  law  of  killing  a  man  unintentionally  prescribes).  And  if 
he  was  not  pleased  with  the  rebounding,  let  him  be  free  even  at 
a  greater  distance.  And  he  answered  :  The  greater  the  distance 
a  ball  rebounds,  the  more  is  the  pleasure  of  the  ball-player. 

It  was  taught :  R.  Papa  said :  If  one  bound  a  person  and 
turned  a  stream  of  water  upon  him,  it  is  considered  as  if  the  man 
were  killed  directly  by  his  arrow,  and  he  is  guilty  of  a  capital 
crime.  However,  this  is  only  when  he  was  killed  by  the  first  stream 
which  poured  upon  him ;  but  if  he  dies  from  the  continued  flow, 
it  is  not  considered  direct  kiUing,  but  only  a  cause  of  death. 

The  same  said  again :  If  one  throws  a  stone  on  high  and  it 
swerves  and  kills  a  man,  he  is  guilty.  Said  Mar.  b.  R.  Ashi  to 
him  :  Let  us  see  what  is  the  reason  of  your  theory  !  Because  the 
stone  went  by  his  force  ?  But  if  so,  the  force  must  only  be  con- 
sidered when  it  went  on  high  ;  and  when  his  force  ends  it  should 
fall  down  vertically.  But  according  to  your  theory  it  swerves, 
hence  it  is  not  by  his  force.  It  must  be  said,  however,  if  this 
cannot  be  called  his  exact  force,  it  may  nevertheless  be  con- 
sidered a  part  of  his  force. 

The  ^rabbis  taught  :  If  one  was  assaulted  by  ten  different 
persons,  no  matter  whether  at  once  or  at  different  times,  and  was 
killed,  none  of  them  has  to  suffer  capital  punishment,  as  accord- 
ing to  the  Scripture  it  must  be  known  who  was  the  cause  of  the 
death.  R.  Jehudah  b.  Bathyra,  however,  holds:  In  case  the 
assault  was  made  by  one  after  the  other,  the  last  one  is  guilty, 
for  he  hastened  his  death.*  Said  R.  Johanan  :  Both  parties 
took  their  theories  from  one  and  the  same  passage  [Lev.  xxiv. 
17]  :  "  And  he  that  taketh  the  life  of  all  the  soul  of  man."  f  The 
rabbis  hold  that  all  the  "soul "  means  one  is  not  guilty  unless  he 

*  Against  our  method,  here  are  repeated  a  few  lines  from  First  Gate,  pp.  55  and 
56  ;  but  we  could  not  do  otherwise,  because  of  the  explanation  in  the  text, 
f  Leeser's  translation  does  not  correspond. 


TRACT   SANHEDRIN    (SUPREME   COUNCIL).         229 

takes  the  whole  soul.     And  R.  Jehudah  holds  that  it  means  all 
that  was  as  yet  left  of  the  soul. 

Said  Rabha :  All  agree  that  if  one  kills  a  person  whose  wind- 
pipe and  larynx  (gullet)  are  cut,  or  whose  skull  is  fractured,  he  is 
free  (for  it  is  considered  as  if  he  had  attacked  a  dead  man).  And 
they  agree  also  that,  if  one  killed  a  person  who  was  struggling  with 
death  through  sickness  caused  by  Heaven,  he  is  guilty  of  a  capital 
crime.  And  the  point  of  their  difference  in  the  above  Boraitha  is, 
if  one  killed  a  man  who  was  struggling  with  death  through  sick- 
ness caused  by  man.  According  to  the  rabbis,  it  is  similar  to  him 
whose  windpipe,  etc.,  are  cut.  But  according  to  R.  Jehudah  b. 
Bathyra,  it  is  similar  to  him  who  was  struggling  with  death 
through  sickness  caused  by  Heaven. 

A  disciple  taught  in  the  presence  of  R.  Shesheth  :  The  above- 
cited  verse,  which  commences  with  "  and  a  man,"  means  if  one 
struck  a  person  with  an  article  which  can  cause  death,  but  the 
man  was  not  entirely  without  life,  and  another  came  and  put  an 
end  to  him  entirely,  the  latter  is  responsible,  as  the  ordinary 
opinion  is  in  accordance  with  R.  Jehudah  b.  Bathyra. 

Rabha  said :  If  one  kills  a  person  whose  windpipe  and  larynx 
are  cut  he  is  free ;  but  if  the  latter  killed  a  person,  if  this  was  in 
the  presence  of  the  court,  he  is  guilty.  As  it  reads  [Deut.  xiii. 
6]  :  "  And  thou  shalt  put  the  evil  away  from  the  midst  of  thee." 
But  if  not  in  the  presence  of  the  court,  but  in  the  presence  of 
other  witnesses,  he  is  free,  as  their  testimony  cannot  be  taken  into 
consideration,  because  they  cannot  be  made  collusive  (as  their  in- 
tention was  to  kill  a  man  already  dead).  And  there  is  a  rule  that 
such  a  testimony  as  was  given  by  those  cannot  be  made  collusive 
is  not  considered  as  testimony  at  all. 

And  he  said  again  :  Although  the  witnesses  who  had  testified 
against  the  man  whose  windpipe,  etc.,  were  cut  were  thereafter 
found  collusive,  they  are  not  to  be  put  to  death  ;  if  the  windpipe, 
etc.,  of  the  witnesses  themselves  were  cut  at  the  time  they  testi- 
fied, and  thereafter  they  were  found  collusive,  they  are  to  be  put 
to  death,  because  of  the  above-cited  verse.  R.  Ashi,  however, 
maintains  that  they  are  not,  because  the  witnesses  who  made  them 
collusive  could  not  be  punished  if  their  testimony  were  found 
false,  as  their  intention  was  to  kill  men  who  are  considered  al- 
ready dead. 

And  Rabha  said  again  :  An  ox  of  such  a  kind,  if  he  killed  a  per- 
son, is  guilty.  But  if  the  ox  was  a  healthy  one  and  his  owner  was 
of  that  kind,  he  is  free ;  because  it  reads  [Ex.  xxi.  29]  :  "  The  ox 


230  THE    BABYLONIAN    TALMUD. 

should  be  put  to  death  and  the  owner  also."  And  as  in  this  case 
the  owner  is  considered  already  dead,  and  the  expression  "  he 
shall  also  be  put  to  death,"  does  not  apply  to  him,  we  therefore  do 
not  apply  to  the  ox  the  beginning  of  the  verse.  R.  Ashi,  how- 
ever, maintains  that  even  if  the  ox  was  of  that  kind,  he  is  also 
free  for  if  its  owner  would  be  such  it  would  be  free  ;  therefore  it 
is  to  be  Tree  when  it  itself  is  of  this  kind. 

"  If  he  set  a  dog  or  a  serpent,''  etc.  Said  R.  Abbah  b.  Jacob  : 
If  you  wish  to  know  the  reason  of  their  difference,  it  may  be  said 
thus:  According  to  R.  Jehudah,  the  venom  of  the  serpent  is 
always  between  its  teeth  (/.  e.,  with  the  bite  of  the  serpent  the 
venom  is  injected  into  the  body,  which  causes  death  directly)  and, 
therefore,  if  he  applied  the  serpent  to  the  body  he  is  to  be  decap- 
itated, and  the  serpent  is  free.  And  according  to  the  sages,  the 
poisoning  comes  after  the  bite,  from  the  venom  of  the  serpent 
Hence  the  biting  did  not  cause  death  directly,  and  therefore  the 
serpent  must  be  stoned  and  he  who  applied  it  is  free  from  capital 
punishment. 

MISHNA  ///.  :  If  one  strikes  a  person  with  a  stone  or  with 
his  fists,  and  he  was  diagnosed  (by  the  physicians  of  the  court)  to 
die,  and  thereafter  he  improved,  and  was  diagnosed  to  live,  and 
then  again  becomes  worse  and  dies,  he  is  guilty  of  a  capital  crime. 
R.  Nehemiah,  however,  maintains  that  he  is  free,  because  it  is 
reasonable  to  say  that  he  did  not  die  directly  from  the  blow,  but 
from  some  other  cause. 

GEMARA  :  The  rabbis  taught :  The  lecture  of  Nehemiah 
concerning  this  matter  was  thus  :  It  reads  [Ex.  xxi.  19]  :  "  If  he 
rise  again  and  walk  abroad  upon  his  crutch,  then  shall  he  that 
smote  him  be  acquitted."  Can  it  be  supposed  that  one  should 
be  put  to  .death  because  he  struck  a  person  who  later  walks  in  the 
market,  if  there  were  not  a  passage  which  commands  the  con- 
trary? We  must  then  say  that  the  passage  means  that  if  when 
he  was  struck  he  was  diagnosed  to  die,  and  thereafter  he  im- 
proved, walked  in  the  street,  and  was  diagnosed  to  live,  and  then 
became  worse  and  died,  he  is  nevertheless  free.  What  do  the 
opponents  of  R.  Nehemiah  infer  from  the  words  "  be  acquitted  "  ? 
That  the  person  who  struck  must  be  kept  in  arrest  until  the  out- 
come shall  be  known.  R.  Nehemiah,  however,  maintained  that 
no  verse  is  necessary  for  this,  as  this  is  to  be  inferred  from  the 
woodgatherer,  who  was  arrested  immediately  after  committing 
the  crime.  Why  did  not  the  rabbis  also  infer  from  the  wood- 
gatherer  ?    (Moses  was  aware  that)  he  was  surely  guilty  of  a  capital 


TRACT   SANHEDRIN    (SUPREME   COUNCIL).         231 

crime,  but  did  not  know  whas  kind  of  death  applied  to  him.  But 
concerning  the  murderer  in  question,  it  is  not  known  whether  he 
came  under  the  category  of  capital  punishment  at  all  ?  R.  Nehe- 
miah,  however,  infer  this  from  the  blasphemer,  of  whom  Moses  did 
not  know  whether  he  came  under  the  category  of  capital  punish- 
ment at  all,  and  nevertheless  he  was  imprisoned.  The  rabbis,  how- 
ever, do  not  infer  this  from  the  blasphemer,  as  according  to  their 
opinions  it  was  only  a  decision  for  that  time,  as  we  have  learned  in 
the  following  Boraitha:  Moses  our  master  was  aware  that  the 
woodgatherer  was  guilty  of  capital  crime.  As  it  reads  (Ex.  xxxi. 
14]  :  "  Everyone  that  defileth  it  shall  be  put  to  death."  But  he 
did  not  know  what  kind  of  death ;  as  it  reads  :  [Num.  xv.  34]  : 
Because  it  had  not  been  declared  what  should  be  done  to  him." 
Concerning  the  blasphemer,  however,  it  is  not  so  written,  but  : 
"To  the  decision  of  the  Lord,"  hence  Moses  was  not  aware 
whether  he  came  under  the  category  of  death  at  all. 

The  rabbis  taught :  If  one  struck  a  person  and  he  was 
diagnosed  to  die,  but  he  nevertheless  remained  alive,  they  may  free 
him.  And  if  he  was  diagnosed  to  die  and  he  improved,  the  sick 
man  must  be  examined  again,  and  appraisement  made  concern- 
ing the  money  which  is  to  be  collected  from  his  smiter ;  and  if 
thereafter  he  becomes  worse  and  dies,  he  must  be  charged  ac- 
cording to  the  second  examination.  So  is  the  decree  of 
Nehemiah.  The  sages,  however,  maintain  that  there  is  no  other 
examination  after  the  first.  There  is  another  Boraitha :  If  he 
was  diagnosed  to  die,  but  he  did  not,  he  must  be  examined  again. 
But  if  the  first  opinion  was  that  he  would  live  no  second  examina- 
tion as  to  dying  may  take  place  (for  if  it  happened  that  he  dies, 
it  is  probably  not  from  the  previous  blow).  If,  however,  he  was 
diagnosed  to  die,  and  he  becomes  better,  the  sick  man  must 
undergo  an  appraisement  concerning  money.  And  if  thereafter 
he  becomes  worse  and  dies,  his  murderer  must  pay  for  damages  and 
the  suffering  of  the  deceased,  to  the  heirs  from  the  time  he  was 
struck  till  his  death.  And  this  anonymous  Boraitha  is  in  accord- 
ance with  R.  Nehemiah,  who  frees  such  from  capital  punishment. 

MISHNA  IV.  :  To  the  following,  capital  punishment  does 
not  apply  :  To  one  who  intended  to  kill  an  animal  and  killed  a 
man,  an  idolator  and  killed  an  Israelite,  a  miscarried  child  and 
killed  a  mature  one.  The  same  is  the  case  with  one  who 
intended  to  strike  another  on  the  loins  with  an  article  which  was 
not  sufficient  to  cause  death,  but  the  blow  was  made  on  his  heart, 
for  which  it  was   sufficient,  and  he  dies ;  or  if  he  intended  to 


232  THE    BABYLONIAN    TALMUD. 

strike  him  on  the  heart  with  an  article  which  was  sufficient 
to  cause  death  if  striking  same,  but  he  struck  the  loins  and  the 
man  dies,  although  it  was  not  sufficient  to  cause  death  if  struck 
on  the  heart  or  even  if  he  intended  to  strike  an  adult  with 
an  article  which  was  not  sufficient  for  such,  but  it  happened  that 
he  struck  a  minor  and  he  dies,  as  for  a  minor  it  was  sufficient ;  or, 
on  the  contrary,  if  he  intended  to  strike  a  minor  with  an  article 
which  was  sufficient  for  such,  but  not  for  an  adult,  and  it 
happened  that  he  struck  with  it  an  adult  and  he  nevertheless 
dies.  To  the  following,  however,  capital  punishment  does  apply  : 
To  one  who  intended  to  strike  a  person  on  the  loins  with  an 
article  which  was  sufficient  for  this  purpose,  and  he  strikes  him  to 
death  on  his  heart,  or  if  he  intended  to  strike  an  adult  with  an  arti- 
cle which  was  sufficient  to  cause  his  death,  but  it  happens  that  he 
strikes  to  death  a  minor  with  it.  R.  Simeon,  however,  maintains  : 
Capital  punishment  does  not  apply  even  to  him  who  intended  to 
kill  a  certain  person,  and  it  happened  that  he  killed  another. 

GEMARA  :  To  which  part  of  the  Mishna  belongs  R.  Simeon's 
theory?  If  to  the  latter  part  only  it  should  read:  And  R. 
Simeon  frees  him  {i.e.,  him  who  intended  to  kill  an  adult  and 
killed  a  minor).  We  must  then  say  that  it  belongs  to  the  first 
part,  which  states  :  an  animal — an  idolater — an  Israelite — a  mis- 
carried child,  etc.,  to  which  capital  punishment  does  not  apply, 
from  which  it  is  to  be  understood  that  if  there  were  two  resemb- 
ling persons,  and  he  intended  to  kill  one  and  killed  the  other, 
capital  punishment  does  apply.  And  to  this  R.  Simeon  came  to 
say  that  even  in  such  a  case  capital  punishment  does  not  apply. 
Now,  let  us  see!  If,  e.g.,  there  were  Reuben  and  Simeon,  and 
the  murderer  said,  "  I  intend  to  kill  Reuben  and  not  Simeon," 
and  finally  Simeon  was  killed,  and  not  Reuben — this  is  the 
case  in  which  the  first  Tana  and  R.  Simeon  differ.  But  how  is 
it  if  the  murderer  said,  "  I  intend  to  kill  one  of  them  "  ;  or  the 
murderer  mistook  Simeon  for  Reuben  ?  Does  R.  Simeon  differ 
even  in  this?  Come  and  hear  the  following  Boraitha:  R, 
Simeon  said  :  Capital  punishment  does  not  apply,  unless  one 
said,  "  I  intended  to  kill  so  and  so,"  and  he  did  so.  And  what  is  his 
reason?  [Deut.  xix.  ii]  :  "But  if  any  man  be  an  enemy  to  his 
neighbor  and  lie  in  wait  for  him,"  which  means  only  when  he 
killed  the  intended  person.  Said  the  disciples  of  Janai :  And 
what  do  the  rabbis  say  to  this  verse?  It  excludes  him  who 
throws  a  stone  into  an  excavation  in  which  men  are  standing^ 
without  the  intention  of  killing  any  particular  one.     Now,  let  us 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         233 

see  !  According  to  the  rabbis,  who  apply  capital  punishment  to 
him  who  killed  one  person,  although  he  intended  to  kill  another, 
the  verses  Ex.  xxi.  22  and  23,  "  If  men  strive  .  .  .  then 
shalt  thou  give  life  for  life,"  are  in  accordance  with  the  ex- 
planation of  R.  Elazar,  stated  above,  that  the  verses  speak 
about  him  who  intends  to  kill.  But  how  should  this  passage  be 
explained  in  accordance  to  Simeon's  theory?  In  accordance 
with  Rabbi  of  the  following  Boraitha :  "  Thou  shalt  give  life  for 
life  "  means  money  {i.e.,  the  value  of  the  woman  should  be  paid 
to  her  heirs).  You  say  "  money,"  but  perhaps  it  means  literally 
"life"?  The  expression  here  "thou  shalt  give,"  is  to  be  ex- 
plained similarly  to  ibid.,  ibid.  22  :  "  He  shall  give  according  to 
the  decision,"  etc.  As  there  it  means  money,  the  same  is  the 
case  here. 

Rabha  said :  The  following  statements,  taught  in  the  school 
of  Hiskia,  correspond  neither  with  Rabbi  nor  with  the  rabbis 
mentioned  above.  Namely  :  It  reads  [Lev.  xxiv.  21]  :  "And  he 
that  killeth  a  beast  shall  make  restitution  for  it,  and  he  that 
killeth  a  man  shall  be  put  to  death."  As  in  the  case  of  a  beast 
there  is  no  difference  whether  it  was  intentionally  or  uninten- 
tionally, by  an  error  or  by  premeditation,  while  he  was  ascending 
or  descending,  he  is  always  liable  and  must  pay.  The  same  is  it 
in  the  latter  case  of  a  human  being :  there  is  no  difference 
whether  it  was  intentionally,  etc., — he  is  absolved  from  any 
money  payment. 

Now  let  us  see  what  is  meant  by  the  expression  "  uninten- 
tionally "  concerning  a  human  being.  Shall  we  assume,  i.e.,  that 
it  was  done  without  any  intention  ?  Then  it  was  an  error,  which 
has  been  already  mentioned.  Why,  then,  the  repetition  ?  You 
must  then  say  that  it  means,  if  he  intended  to  kill  one  and 
killed  another  person,  and  nevertheless  it  states  that  he  is 
absolved  from  any  payment.  Now,  if  he  should  hold  with  the 
rabbis  that  such  is  guilty  of  a  capital  crime,  then  such  a  state- 
ment is  not  necessary,  as  there  is  a  rule  that  no  payment  is 
required  in  a  case  of  capital  punishment.  We  must  therefore 
say  that  it  does  not  agree  with  them ;  nor  can  we  say,  on  the 
other  hand,  that  it  agrees  with  Rabbi,  as  the  latter  requires 
payment,  while  Heskia  does  not. 

MISHNA  V.  :  A  murderer  mixed  up  among  others — all  of 
them  are  free.  R.  Jehudah  maintains  :  All  of  them  must  be  taken 
to  ;jff^o?  (a  life-long  prison,  to  be  done  with  as  explained  farther 
on).     If  it  happen  that  the  persons  sentenced  to  deaths  of  differ- 


234 


THE   BABYLONIAN   TALMUD. 


ent  kinds,  and  are  so  mixed  that  it  is  not  known  who  comes  under 
this  kind  of  death  and  who  under  another,  all  of  them  must  be 
executed  with  the  more  lenient  death,  e.g.,  if  those  who  are  to  be 
stoned  are  mixed  up  among  those  who  are  to  be  burned,  accord- 
ing to  the  sages  all  of  them  must  be  executed  by  burning,  as 
stoning  is  more  rigorous  ;  and  according  to  R.  Simeon  all  of  them 
are  to  be  executed  by  stoning,  as  burning  is  more  rigorous. 
Said  R.  Simeon  to  the  sages :  Were  burning  not  more  rigorous, 
it  would  not  apply  to  a  daughter  of  a  priest  who  had  sinned. 
Answered  the  sages:  Were  stoning  not  more  rigorous,  it  would  not 
apply  to  a  blasphemer  and  an  idolater.  If  they  who  are  to  be 
slain  by  the  sword  are  mixed  among  those  who  are  to  be  choked, 
according  to  R,  Simeon  they  must  be  decapitated,  and  according 
to  the  sages,  they  must  be  choked. 

GEMARA :  What  does  the  Mishna  mean  by  the  words, 
"  among  others  "?  Does  it  mean  others  who  are  innocent?  Is  it 
not  self-evident  that  they  are  all  free  ?  And  secondly,  could 
R.  Jehudah  say  that  such  are  to  be  imprisoned?  Said  R.  Abuhu 
in  the  name  of  Samuel :  It  speaks  of  a  murderer  who  was  not  as 
yet  sentenced,  and  was  mixed  among  those  who  were  already  sen- 
tenced; and  as  the  verdict  of  death  must  be  rendered  only  in  the 
presence  of  the  criminal,  therefore  all  of  them  are  free  from  execu- 
tion according  to  the  rabbis.  R.  Jehudah,  however,  maintains 
that  such  cannot  be  entirely  free,  since  they  are  murderers,  and 
therefore,  they  must  be  taken  to  the  kyphos. 

Resh  Lakish  said :  The  Mishna  does  not  mean  human  beings 
at  all,  but  oxen — i.e.,  whether  an  ox  which  was  not  as  yet  sen- 
tenced to  death  was  mixed  among  others  which  were  already 
sentenced  is  the  point  of  their  difference.  According  to  the 
rabbis  the  ox  must  be  judged  the  same  as  its  owner.  As  its 
owner  cannot  be  sentenced  to  death  if  not  present,  the  same  is 
the  case  with  the  ox ;  and  as  he  is  now  mixed  among  others,  all 
of  them  are  free.  And  R.  Jehudah  maintains  that  all  of  them 
must  be  taken  to  the  kyphos. 

Said  Rabha :  How  can  such  an  explanation  be  given  to  the 
Mishna?  Does  not  a  Boraitha  add  to  this  :  Said  R.  Jose  :  Even 
if  among  the  others  was  Abbah  Halafta  (who  was  known  as  a 
great  man).  How,  then,  can  the  Mishna  be  interpreted  that  it 
means  other  murderers  or  oxen  ?  Therefore  explains  he  :  It  means 
if,  e.g.,  two  were  standing  shoulder  to  shoulder  and  an  arrow  came 
out  from  one  of  them  and  killed  a  person,  both  of  them  are  free. 
And  to  this  R.  Jose  said  :  Even  if  Abbah  Halafta  was  among  the 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         235 

two,  and  it  is  certain  that  Abbah  Halafta  would  not  commit 
such  a  crir.ie.  Nevertheless,  the  other  is  free.  And  the  saying 
of  R.  Jehudah  belongs  to  another  case,  as  the  Mishna  is  not  com- 
pleted, and  should  read  thus :  And  if  an  ox  which  was  sentenced 
to  death  was  mixed  among  other  innocent  oxen,  they  must  all  be 
stoned.  R.  Jehudah,  however,  maintains  that  all  of  them  must 
be  taken  to  the  kyphos,  and  it  is  in  accordance  with  the  following 
Boraitha  :  If  a  cow  has  killed  a  human  being,  and  thereafter  gave 
birth,  before  she  was  sentenced  to  death,  the  offspring  is  valid ; 
but  if  it  happened  after  she  was  sentenced,  the  offspring  is  invalid. 
And  if  such  were  mixed  among  others,  and  even  if  some  of  the 
others  among  which  it  is  mixed  were  mixed  with  still  others,  all 
of  them  must  be  taken  to  the  kyphos.  R.  Elazar  b.  Simeon,  how- 
ever, maintains  :  All  of  them  arc  to  be  brought  to  the  court  and 
stoned. 

''All  who  were  sentenced  to  death^'  etc.  Infer  from  this  that 
if  one  is  forewarned  of  a  rigorous  crime,  it  suffices  for  a  lenient 
one.  (This  question  was  not  yet  solved.)  Said  R.  Jeremiah  : 
The  Mishna  speaks  of  a  case  where  the  criminal  was  warned  in 
general ;  and  it  is  in  accordance  to  the  Tana  of  the  following 
Boraitha  :  All  the  crimes  to  which  capital  punishment  applies, 
the  perpetrators  of  them  are  not  put  to  death  unless  there  were 
witnesses  who  warned  them,  and  unless  they  warned  them  that 
they  were  liable  to  die  by  the  decision  of  the  court.  And  accord- 
ing to  R.  Jehudah,  only  when  they  notified  them  by  which  kind 
of  death  they  would  be  executed. 

The  first  Tana,  who  does  not  require  that  they  should  be  noti- 
fied by  which  death,  infers  it  from  the  case  of  the  woodgatherer ; 
and  according  to  R.  Jehudah,  nothing  is  to  be  inferred  from  the 
case  of  the  woodgatherer,  as  it  was  only  a  decision  of  that  time. 

"  Among  those  who  are  to  be  burned^'  etc.  R.  Ezekiel  taught 
to  Rami  his  son :  If  those  who  are  to  be  burned  were  mixed 
among  those  who  are  to  be  stoned,  according  to  R.  Simeon,  they 
are  to  be  executed  by  stoning,  as  burning  is  more  rigorous.  Said 
R.  Jehudah  (his  older  son)  to  him  :  Father,  do  not  teach  so,  for, 
according  to  your  teaching  (as  •'  those  who  are  to  be  burned  were 
mixed  among  those  who  are  to  be  stoned  ")  it  seems  that  the 
majority  of  them  come  under  the  category  of  stoning  :  Hence 
the  reason  why  they  are  to  be  stoned  is  not  because  it  is  more 
lenient,  but  because  so  was  it  to  be  done  with  the  majority.  And 
to  the  question  of  his  father  :  How,  then,  shall  I  teach  ?  The 
answer  was  :  As  our  Mishna  states  :  If  those  who  are  to  be  stoned 


236  THE    BABYLONIAN    TALMUD. 

were  mixed  among  those  who  are  to  be  burned,  R.  Simeon  said, 
etc.  But  if  so,  how  is  the  latter  part,  "  And  the  sages  said  that 
they  are  to  be  executed  by  burning,  because  burning  is  more 
rigorous,"  to  be  understood  ?  Also  here  the  reason  may  be  that 
the  majority  who  are  to  be  executed  come  under  the  cate- 
gory of  burning?  Nay  !  The  expression  of  the  rabbis,  "  stoning 
is  more  rigorous,"  was  not  as  a  reason,  but  as  an  answer  to  R. 
Simeon.  And  it  is  to  be  explained  thus  :  If  they  were  mixed 
among  those  who  are  to  be  burned,  it  must  be  done  with  them 
in  accordance  with  their  majority.  And  your  supposition  to  care 
about  the  minority,  because  we  have  to  select  for  them  a  lenient 
death,  does  not  hold  good,  as  in  reality  stoning  is  more  rigorous. 
Said  Samuel  to  R.  Jehudah  :  Genius  !  do  not  express  yourself  in 
such  terms  to  your  father,  as  there  is  a  Boraitha :  If  a  son  saw  his 
father  transgressing  what  is  written  in  the  Scripture,  he  must  not 
say  to  him,  "  Father,  you  have  transgressed  the  law,"  but, 
"  Father,  so  and  so  is  written  in  the  Scripture." 

But  is  it  not  finally  one  and  the  same  ?  It  means  he  shall 
say  :  "  Father,  there  is  a  verse  in  the  Scripture  which  reads  so  and 
so,"  and  in  such  a  tone  that  it  shall  not  seem  a  rebuke,  but  an 
intimation. 

MISHNA  VI. :  If  one  committed  a  crime  which  deserves  two 
kinds  of  death  {e.£:,  one  who  has  intercourse  with  his  mother-in- 
law  who  is  married,  commits  two  crimes — with  a  married  woman, 
to  which  choking  applies,  and  with  his  mother-in-law,  to  which 
burning  applies),  he  must  be  tried  for  the  more  rigorous  one. 
R.  Jose,  however,  maintains  :  According  to  that  act,  he  began 
first.     (Illustrations  in  the  Gemara.) 

GEMARA  :  Is  this  not  self-evident  ?  Should  one  who  has 
committed  another  crime  which  brings  an  easier  punishment  be 
benefited  by  it  ?  Said  Rahba :  It  speaks  of  where  he  was  tried 
for  a  case  which  deserved  a  lenient  death,  and  was  sentenced,  and 
then  committed  a  crime  to  which  a  more  rigorous  death  appHes. 
Lest  one  say  that  this  man  is  to  be  considered  as  already  killed 
and  not  to  be  tried  again,  it  comes  to  teach  us  that  he  must  be 
tried  and  punished  with  the  more  rigorous  death. 

The  brother  of  R.  Jose  b.  Hanna  questioned  Rabba  b.  Nathan : 
Whence  is  this  law  deduced  ?  (And  the  answer  was  :)  from  Ezek. 
xviii.  10-13;  "...  Upon  the  mountains  he  eateth  .  .  . 
and  his  eyes  he  lifteth  up  to  the  idols  of  the  house  of  Israel  .  .  . 
and  the  wife  of  his  neighbor  he  defileth  ..."  To  blood- 
shed the  sword  applies,  to  adultery  with  a  married  woman  choking 


TRACT    SANHEDRIM    (SUPREME    COUNCIL).         237 

applies,  and  to  idolatry  stoning  applies,  and  it  ends  with  "  his 
blood  shall  be  upon  him,"  which  means  stoning.  Hence  he  is  to 
be  executed  with  the  more  rigorous  one,  R.  Na'hman  b.  Itz'hak 
opposed  :  Perhaps  all  the  crimes  mentioned  in  this  passage  come 
under  the  category  of  stoning,  namely,  a  "  dissolute  son,"  means 
a  stubborn  and  rebellious  son,  to  whom  stoning  applies ;  "  he 
defileth  the  wife  of  his  neighbor  "  means  a  betrothed  damsel,  to 
whom  also  the  same  applies  ;  "  to  the  idols  he  lifteth  up,"  which  is 
idolatry',  to  which  stoning  applies?  If  it  were  so,  then  what 
came  Ezekiel  to  teach  ?  And  lest  one  say  that  he  was  only 
repeating  what  is  in  the  Scripture,  then  he  ought  to  have  done  as 
did  Moses  our  master,  who  said  [Deut.  xvii.  18]  :  He  shall  write  the 
repetition  of  the  law."  * 

R.  Abhah  b.  Hanina  lectured  about  the  passage  [ibid.  6]  : 
"  Upon  the  mountains  he  eateth  not,"  which  ends  with  [ibid.  9]  : 
"  He  is  righteous,  he  shall  surely  live."  Is  it  possible  that,  be- 
cause he  has  not  committed  such  crimes,  he  should  be  called 
righteous  ?  Therefore  these  verses  must  not  be  taken  literally, 
but  "  upon  the  mountains  he  eateth  not "  means  that  he  does  not 
live  upon  the  reward  of  the  meritorious  acts  done  by  his  parents ; 
"  his  eyes  he  lifteth  not  up  to  the  idols  "  means  that  he  never 
walked  overbearingly  ;  "  and  the  wife  of  his  neighbor  he  defileth 
not,"  means  that  he  never  tried  to  compete  in  the  special  trade 
of  his  neighbor ;  "  unto  a  woman  on  her  separation  he  cometh  not 
near  "  means  that  he  never  tried  to  derive  any  benefit  from  the 
treasure  of  charity — and  to  this  it  reads :  "  He  is  righteous,  he 
shall  surely  live." 

Rabban  Gamaliel,  when  he  came  to  this  passage,  used  to 
weep,  saying :  It  seems  as  if  he  who  has  done  all  of  them  is 
righteous,  but  not  he  who  has  done  only  one.  Said  R.  Aqiba 
to  him  :  According  to  your  theory,  the  verse  [Lev.  xviii.  24]  : 
"  Do  not  defile  yourself  with  all  of  these  things,"  also  means  with 
all  of  them,  but  one  of  them  is  allowed  ?  Hence  it  means  to  say 
with  "  any  "  of  them.  The  same  is  to  be  said  here  :  If  one  does 
one  of  the  things  mentioned  above,  he  is  righteous. 

"  A  crime  which  deserves  two  kinds,''  etc.  There  is  a  Boraitha  : 
How  is  R.  Jose's  decision  in  our  Mishna  to  be  illustrated  ? — e.g.^ 
if  the  crime  which  he  committed  with  this  woman  was  that  she 
became  first  his  mother-in-law  and  then  married.  Hence  the  pro- 
hibition of  having  intercourse  with  her  applied,  even  before  she 

*  Leeser's  translation,  "  a  copy  of  the  law,"  is  entirely  wrong. 


238  THE   BABYLONIAN    TALMUD. 

married  again.  Then  he  must  be  tried  under  the  crime  "  with  a 
mother-in-law."  But  if  she  became  his  mother-in-law  after  her 
marriage,  then  he  must  be  tried  under  the  crime  "  with  a  married 
woman,"  as  the  prohibition  against  intercourse  with  her  existed 
already  before  she  became  his  mother-in-law. 

Said  R.  Adda  b.  Ahabah  to  Rabha :  In  the  first  case,  in  which 
she  married  after  she  became  his  mother-in-law,  why  should  he 
not  also  be  tried  for  the  crime  with  a  married  woman  ?  Did  not 
R.  Abuhu  say  that  R.  Jose  agrees  in  case  a  prohibition  were 
added.  {E-g-,  when  she  was  his  mother-in-law  but  unmarried,  she 
was  prohibited  to  him  only,  but  allowed  to  the  whole  world,  and 
when  married  she  became  prohibited  to  the  whole  world.  Hence 
one  prohibition  was  added.  And  in  such  a  case  R.  Jose  agrees 
that  the  second  crime  must  also  be  taken  into  consideration.) 
And  Rabha  answered  :  Adda,  my  son,  do  you  want  us  to  exe- 
cute him  twice?  (R.  Jose  considers  the  added  prohibition 
to  be  only  concerning  sin-offerings,  when  incurred  through 
error.) 

MISHNA  VII.  :  He  who  receives  stripes,  and  relaxes  into  the 
same  crime,  and  is  punished  again  and  does  not  repent,  the  court 
takes  him  to  the  kyphos,  and  feeds  him  with  barley  until  his 
abdomen  bursts. 

GEMARA :  Because  he  received  stripes  twice,  should  the 
court  imprison  him  in  the  kyphos  forever?  Said  Jeremiah  in  the 
name  of  Resh  Lakish :  The  Mishna  speaks  of  crimes  to  which 
korath  applies,  and  he  was  forewarned  of  stripes,  and  was  pun- 
ished twice  for  the  same  crime.  And  as  this  man  deserves  death 
by  Heaven,  but  his  time  has  not  yet  come,  and  we  see  that  he 
devotes  his  life  to  sin,  the  court  imprisons  him  to  hasten  his 
death.  Said  R.  Jacob  to  R.  Jeremiah  b.  Tahlifa :  Come  and  I 
will  explain  to  you  the  real  meaning  of  Resh  Lakish  :  The  Mishna 
means  that  he  has  committed  the  same  crime  thrice,  for  two  of 
which  he  has  received  stripes.  And  as  the  court  does  not  see 
any  remedy  for  him,  it  puts  him  in  the  kyphos  after  the  third 
time.  If,  however,  he  has  committed  different  crimes  to  which 
korath  applies,  he  is  not  taken  to  the  kyphos,  as  he  is  not  con- 
sidered as  devoting  his  life  to  this  crime,  but  as  one  careless  con- 
cerning prohibitions. 

"  He  who  receives  stripes  twice,  "  etc.  Twice,  although  he 
was  not  punished  a  third  time  !  Shall  we  assume  that  our  Mishna 
is  not  in  accordance  with  R.  Simeon  b.  Gamaliel,  who  says  that 
until  one  has  repeated  the  same  crime  thrice  it  is  not  considered 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         239 

a  hazakah*  (habit).  Said  Rabhina :  It  may  be  even  in  accord- 
ance with  R.  Simeon,  as  the  crime  was  committed  thrice,  and  he 
considers  it  a  habit,  although  he  was  not  beaten  thrice. 

An  objection  was  raised  from  the  following :  He  who  has 
committed  a  crime  twice  to  which  the  punishment  of  stripes  ap- 
plies receives  the  stripes  twice  ;  repeating  same  a  third  time,  the 
court  puts  him  in  the  kyphos.  Abba  Shaul,  however,  maintains 
that  even  to  the  third  time  he  receives  stripes,  and  only  after  he  has 
committed  the  crime  a  fourth  time  does  the  court  imprison  him. 
Is  it  not  to  be  assumed  that  the  Tanaim  of  this  Boraitha  differ  in 
the  same  point  as  R.  Simeon  b.  Gamahel  and  Rabbi  differ — name- 
ly, whether  it  should  be  considered  a  hazakah  after  two  times, 
which  is  the  opinion  of  Rabbi,  or  after  three  times,  according  to 
R.  Simeon  ?  Nay  ;  all  agree  with  R.  Simeon.  And  the  point  of 
their  difference  is  that,  according  to  the  first  Tana,  the  crimes 
which  were  committed  thrice  counted,  and  according  to  Abba 
Shaul,  the  stripes,  and  not  the  crimes,  are  to  be  counted. 

Where  is  to  be  found  an  allusion  in  the  Scripture  to  the  kyphos 
in  question?  Said  Resh  Lakish  [Ps.  xxxiv.  22]  :  "  The  evil  will 
slay  the  wicked."  And  the  same  said  again  :  It  reads  [Eccl.  ix. 
12]  :  "  For  man  also  knoweth  not  his  time,  like  the  fishes  that  are 
caught  in  an  evil  net,"  from  which  the  same  is  to  be  inferred. 

MISHNA  VIII.  :  He  who  kills  a  person,  not  in  the  presence  of 
witnesses,  is  taken  to  the  kyphos  and  is  fed  on  scant  bread  and 
water. 

GEMARA  :  But  whence  do  we  know  if  it  was  not  in  the  pres- 
ence of  witnesses  ?  Said  Rabh :  If  there  was  only  one  witness, 
or  even  if  there  were  two  who  saw  this  from  separate  places. 
And  Samuel  said  :  If  he  committed  the  crime  without  fore- 
warning. And  R.  Hisda  in  the  name  of  Abimi  said  :  Even  when  the 
witnesses  contradicted  themselves  in  unimportant  matters — as, 
e.g.,  a  Mishna  stated  above  :  Ben  Sakkai  examined  them  concern- 
ing the  size  of  figs,  etc.,  and  they  were  not  contradicted  in  the 
examination. 

''And  is  fed  with  scant  bread  and  water!'  And  above  it  was 
said  that  he  was  fed  with  barley  ?  Said  R.  Shesheth :  In  both 
cases  it  is  meant  that  he  was  first  fed  with  scant  bread  and  water 
till  his  abdomen  shrank,  and  afterwards  with  barley,  from  which 
it  swelled  till  it  burst. 

MISHNA  IX.  :  If    one  steals  a  kisvah,  or    one    curses    his 

*  See  footnote,  Vol.  XIV.,  p.  217. 


240  THE   BABYLONIAN    TALMUD. 

neighbor,  invoking  God  as  "  a  carver,"  or  one  has  intercourse  with 
a  female  heathen,  zealous  people  (like  Pinehas)  have  a  right  to 
strike  him  when  caught  in  the  act.  If  a  priest  performed  the  serv- 
ice in  the  Temple  while  he  was  unclean,  his  fellow-priests  would 
not  bring  him  to  the  court,  but  the  youths  would  take  him  out  of 
the  sanctuary  and  split  his  head.  If  a  common  Israelite  served 
in  the  Temple,  according  to  R.  Aqiba,  he  was  choked  by  the  court, 
and  according  to  the  sages  he  would  come  to  his  death  by 
Heaven. 

GEMARA  :  What  is  meant  by  "  kisvah  "  ?  Said  R.  Jehudah  : 
It  means  service  vessels  [c/.  Num.  iv.  7].  And  where  is  there  to 
be  found  an  allusion  to  this  in  Scripture  ?  [Ibid.,  ibid,  20]  :  "  That 
they  may  not  go  in  to  see  when  the  holy  things  are  covered,  and 
die." 

"  IV/io  C2irses,"  etc.  R.  Joseph  taught :  May  the  carver  strike 
his  carving.  And  another  explanation  by  Rabah  b.  Mari  is  :  May 
the  carver  strike  him  himself,  and  his  creator  and  his  creation. 

"  One  who  has  intercourse"  etc.  R.  Kahana  questioned 
Rabh  :  What  is  this  punishment  if  there  were  no  zealous  men  ? 
Rabh  forgot  his  traditional  answer  to  this,  and  it  happened  that  it 
was  read  before  R.  Kahan  in  a  dream,  etc.  [Mai.  ii.  11]:  "  Judah 
hath  dealt  treacherously,  and  an  abomination  hath  been  com- 
mitted in  Israel  and  in  Jerusalem  ;  for  Judah  hath  profaned  the 
sanctuary  of  the  Lord  which  he  loveth,  and  hath  married  the 
daughter  of  a  strange  god."  And  he  came  to  Rabh  and  told  him 
that  so  was  it  read  to  him,  and  therefrom  Rabh  recollected  that 
this  passage  was  an  answer  to  his  question,  as  it  reads  immediately 
after  it  :  "The  Lord  will  cut  off,  unto  the  man  that  does  this, 
son  and  grandson,  out  of  the  tents  of  Jacob,  and  him  that 
bringeth  near  an  offering  unto  the  Lord  of  hosts  " — which  means, 
if  he  was  a  scholar,  that  he  should  not  have  a  son  among  the 
scholars  or  a  grandson  among  the  disciples  ;  and  if  he  was  priest, 
that  he  should  not  have  a  son  who  should  bring  an  offering,  etc. 
Hyya  b.  Abuhu  said  :  He  who  has  had  intercourse  with  the 
daughter  of  an  idolater  is  considered  as  if  he  mingles  himself  with 
the  idols.  As  it  reads  :  "  He  hath  married  the  daughter  of  a 
strange  god."  Has,  then,  an  idol  a  daughter?  Hence  it  means 
as  is  just  mentioned  above. 

When  R.  Dimi,  or  Rabbin,  came  from  Palestine,  he  said  that 
the  court  of  the  Maccabees  decreed  :  He  who  does  so  transgresses 
concerning  the  following  four  things :  Neda  (menstruation), 
Shif 'ha  (female-slave),  Goiye  (strangers  in  faith),  and  prostitution. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).        241 

Said  R.  Hisda :  If  one  comes  to  the  court  with  the  question, 
"  May  one  take  revenge  on  the  criminal  mentioned  above?"  his 
question  must  not  be  answered.  And  so  also  said  Rabba  b.  Hana 
in  the  name  of  R.  Johanan,  and  not  only  this,  but  if  it  should 
happen  that  Zimri  were  killed  by  Phinehas  after  he  separated 
himself  from  Cozbi,  Phinehas  would  be  put  to  death  for  this  crime. 
Furthermore,  if  Zimri,  seeing  that  Phinehas  seeks  his  life,  were 
to  kill  him  in  self-protection,  he  would  not  be  punished,  as 
Phinehas  would  be  considered  a  seeker  of  life. 

It  reads  [Num.  xxv.  5] :  "  Moses  said  to  the  judges  of 
Israel,"  etc.  The  tribe  of  Simeon  went  to  Zimri  ben  Saul  and 
said :  They  (the  judges)  are  judging  cases  of  capital  punishment, 
and  you  keep  silent !  What  did  he  do?  He  gathered  twenty- 
four  thousand  of  his  tribe  and  went  to  Cozbi,  pleading  with  her 
to  listen  to  him.  And  to  her  answer,  "  I  am  a  princess,  the 
daughter  of  a  king,  and  my  father  commanded  me  not  to  listen  to 
any  one  but  the  greatest  of  Israel,"  he  said  :  I  myself  am  a  prince 
of  a  tribe  in  Israel,  and  I  am  greater  than  Moses,  as  I  am  from 
the  second  tribe,  while  he  is  from  the  third.  He  took  her  by  the 
locks  of  her  hair,  and  brought  her  to  Moses,  saying:  Son  of 
Amram,  is  this  damsel  allowed  to  me,  or  prohibited  ?  And 
should  you  say  that  she  is  prohibited,  I  would  ask  you.  Who 
allowed  to  you  the  daughter  of  Jethro  ?  Moses,  however,  had 
forgotten  the  traditional  Halakha,  and  he  and  all  who  accom- 
panied him  wept.  As  it  reads  [ibid.,  ibid.  6]  :  "And  these  were 
weeping  by  the  door  of  the  tabernacle  of  the  congregation." 

And  farther  on  it  reads :  "And  Phinehas  saw."  What  did  he 
see?  Said  Rabh  :  He  saw  Zimri's  act,  from  which  he  recollected 
the  traditional  Halakha.  And  he  said  to  Moses :  Granduncle, 
didst  thou  not  teach  me,  on  thy  descending  from  Mount  Sinai, 
that  zealous  men  might  take  revenge  on  him  who  has  had  inter- 
course with  the  daughter  of  an  idolater  ?  To  which  Moses  an- 
swered :  Let  him  who  reads  the  letter  be  the  carrier — i.e.,  let  him 
who  gives  the  advice  be  its  executor. 

Samuel,  however,  said  :  Phinehas  saw  [Prov.  xxi.  30]  :  "  There 
is  no  wisdom,  nor  understanding,  nor  counsel  against  the  Lord — 
i.e.,  in  a  case  where  there  is  a  violation  of  the  Holy  Name  the 
honor  of  the  master  must  not  be  considered  (and  therefore 
Phinehas  did  it  without  the  consent  of  his  master  Moses). 

R.  Itz'hak,  in  the  name  of  R.  Elazar  said:  He  saw  the  angel 
who  destroyed  the  people.  It  reads  :  "  Arose  and  took  a  javelin 
in  his  hand."  From  this  it  may  be  inferred  that  one  must  not 
16 


242  THE    BABYLONIAN    TALMUD. 

enter  with  arms  into  the  house  of  learning.  He  took  out  the 
javelin  from  its  sheath,  sharpened  it,  and  replaced  it  in  the  sheath 
so  that  it  should  not  be  visible ;  and  went  to  the  headquarters 
of  Simeon's  tribe,  saying:  Whence  do  we  know  that  the  tribe  of 
Levi  is  greater  than  Simeon's?  And  the  people  who  were  there 
thought  :  Phinehas  himself  is  coming  to  do  the  same  as  Zimri 
has  done.     Hence  the  scholars  decided  that  this  is  allowed. 

Said  R.  Johanan  :  Six  miracles  occurred  to  Phinehas  when  he 
came  to  smite  Zimri.  One — Zimri  has  not  separated  himself, 
etc  (The  continuation  of  the  Haggadah  will  be  translated 
farther  on.) 

'' If  a  priest  performed  the  service  ,  .  ,  while  he  is  defiled^' 
etc.  R.  Ahbah  b.  Huna  questioned  R.  Shesheth :  Is  a  priest 
who  does  service,  being  defiled,  deserving  of  death  by  Heaven, 
or  not  ?  And  he  answered :  This  we  have  learned  in  our 
Mishna  :  "  A  priest  who  does  service  in  the  Temple,  being  de- 
filed, his  fellow-priests  would  not  bring  him  to  court,  but  the 
youths  would  take  him  out  and  split  his  head."  Now,  if  it 
should  be  supposed  that  he  was  guilty  of  death  by  Heaven,  why 
did  not  they  leave  him  to  the  heavenly  punishment  ?  Rejoined 
he  :  Do  you  mean  to  say  that  he  was  not  guilty  at  all  ?  Is  there 
such  a  thing — that  Heaven  frees  him  and  we  should  put  him  to 
death  ?  Yea  !  Does  not  the  court  put  one  who  is  twice  beaten 
with  stripes  in  the  kyphos  and  cause  him  to  die  ?  (What  com- 
parison is  this.'^)  Did  not  R.  Jeremiah  say  that  it  speaks  of 
crimes  of  a  kind  to  which  korath  applies?  Hence  such  an  offender 
deserves  death.  But  is  the  case  not  the  same  with  him  who 
steals  a  kisvah,  and  with  the  two  othe''  cases  mentioned  in  our 
Mishna  ?  To  all  of  them  it  is  taught  that  there  are  allusions  in 
the  Scripture  implying  that  they  deserve  death,  viz.,  concerning 
a  kisvah  [Num.  iv.  20]  :  "  That  they  may  not  go  in  to  see  when 
the  holy  things  are  covered,  and  die,''  concerning  one  cursing 
his  neighbor,  etc.,  it  was  explained  by  R.  Joseph  that  it  looks 
like  blasphemy,  and  concerning  an  intercourse  with  a  daughter  of 
an  adulterer,  Rabh  recollected  his  tradition,  as  said  above. 

An  objection  was  raised  from  a  Boraitha  which  states :  And 
the  following  are  liable  to  death  by  Heaven :  An  unclean  priest 
who  served  in  the  Temple,  etc.  Hence  we  see  that  his  punish- 
ment is  death,  R.  Shesheth  being  objected  to,  and  the  objection 
remains. 

The  same  Boraitha  continues  thus :  The  following  deserve 
death  by  Heaven :  One  who  eats  grain  in  which  the  heave-offer- 


TRACT    SANHEDRIN  (SUPREME    COUNCIL).         243 

ing  is  mixed,  an  unclean  priest  who  eats  a  heave-offering  while 
defiled,  and  a  commoner  who  partakes  of  the  heave-offering,  a 
commoner  who  performs  service  in  the  Temple,  a  priest,  while 
defiled,  serving  in  the  Temple,  a  priest  who  has  had  a  legal  bath 
after  defilement  and  performs  the  service  in  the  Temple  before 
sunset,  the  same  is  if  he  performs  the  service  without  the  pre- 
scribed dress,  or  he  who  performs  service  before  the  prescribed 
offering  after  defilement  is  brought,  and  also  he  who  serves 
without  the  prescribed  washing  of  his  hands  and  feet,  or  he 
serves  while  drunk,  or  without  having  cut  his  hair  at  the  pre- 
scribed time.  However,  one  uncircumcised,  a  mourner  while 
the  corpse  is  not  yet  buried,  and  he  who  worships  while  sitting, 
do  not  come  under  the  category  of  death  by  Heaven,  but  are 
only  forewarned.  A  priest  who  has  a  blemish  and  he  who  derives 
benefit  from  the  sanctuary  intentionally — according  to  Rabbi  he 
comes  under  the  category  of  death  by  Heaven,  and  according  to 
the  sages  he  comes  under  the  category  of  the  forewarned. 

Concerning  heave-offering  mentioned  in  the  Boraitha,  said 
Rabh :  A  commoner  who  partakes  of  heave-offering  is  to  be 
punished  with  stripes.  Said  R.  Kabana  and  R.  Assi  to  him : 
Let  the  master  say  he  deserves  death  by  Heaven.  And  he 
answered  :  It  reads  [Lev.  xxii.  9,  10]  :  "They  die  therefore  .  ,  . 
I  am  the  Lord  who  sanctify  them.  And  no  stranger  shall  eat  of 
a  holy  thing."  Hence  between  "  they  will  die  "  and  "  no  stranger 
shall  eat "  intervenes  "  I  am  the  Lord,"  etc.,  to  teach  that  the 
punishment  of  death  does  not  apply  to  a  stranger.  But  does 
not  the  above  Boraitha  state  that  such  comes  under  the  category 
of  punishment  by  Heaven  ?  Do  you  want  to  contradict  Rabh 
from  a  Boraitha  ?     Rabh  is  a  Tana,  and  has  the  right  to  differ.* 

"  If  a  common  Israelite  served  in  the  Temple,''  etc.  There  is 
a  Boraitha  :  R,  Ismael  said  :  It  reads  [Num.  xviii.  7]  :  "  And  the 
stranger  that  cometh  nigh  shall  be  put  to  death  "  ;  and  [ibid, 
xvii.  28]  "  Everyone  that  cometh  near  at  all  unto  the  tabernacle 
of  the  Lord  shall  die."  As  the  verse  just  cited  speaks  of  death 
by  Heaven,  the  same  is  the  case  with  the  former. 

R.  Aqiba,  however,  said  :  Here  the  Scripture  says  :  "  And 
die  therefore  "  ;  and  [Deut.  xiii.  6]  :  "  And  that  prophet,  or  that 
dreamer  of  dreams,  shall  be  put  to  death."  And  as  there  it 
means  by  stoning,  the  same  is  the  case  here.     And  R.  Johanan 

*  All  that  is  mentioned  in  the  Boraitha  cited  is  inferred  from  different  passages 
in  the  Scripture  by  analogy  of  expression,  followed  by  a  discussion  at  length  about 
them,  which  does  not  belong  here  and  is  therefore  omitted. 


244  THE   BABYLONIAN    TALMUD. 

b.  Nuri  said  :  As  a  false  prophet  is  punished  with  choking,  the 
same  is  the  case  here.  What  is  the  point  of  their  difference  ? 
R.  Aqiba  holds  that  the  expression  "  put  to  death  "  must  be 
analogized  with  "  put  to  death,"  and  not  "  put  to  death  "  with 
"  shall  die."  And  R.  Ismael  holds  that  we  should  equalize  a 
commoner  with  a  commoner,  and  not  a  commoner  with  a  prophet. 
According  to  R.  Aqiba,  however,  a  prophet  who  has  misled  is 
worse  than  a  commoner. 

And  the  point  of  difference  between  R.  Aqiba  and  R.  Johanan 
b.  Nuri  is  the  same  wherein  R.  Simeon  and  the  rabbis  differ  in 
the  following  Boraitha :  To  a  prophet  who  has  misled,  stoning 
applies  ;  according  to  R.  Simeon,  however,  choking  applies.  But 
does  not  a  Mishna  above  state  (p.  239) :  R.  Aqiba  said  :  Choking 
applies.  There  are  two  Tanaim  who  differ  concerning  R.  Aqiba's 
statement.  Our  Mishna  mentioned  R.  Simeon,  who  said  so,  in 
accordance  with  R.  Aqiba's  theory ;  but  the  Boraitha  is  in 
accordance  with  the  rabbis,  who  are  of  the  opinion,  with  R.  Aqiba, 
that  choking  applies. 


CHAPTER  X. 

RULES  AND  REGULATIONS  CONCERNING  THEM  TO  WHOM  CHOKING 
APPLIES.  CONCERNING  A  REBELLING  JUDGE  ;  WHAT  SHALL  BE 
HIS  CRIME  FOR  WHICH  HE  IS  TO  BE  EXECUTED  ;  AT  WHICH  PLACE 
AND  WITH  WHICH  KIND  OF  DEATH;  AND  CONCERNING  A  FALSE 
PROPHET. 

MISHNA  /.  :  To  the  following,  choking  applies  :  To  him 
who  strikes  his  father  or  mother,  to  him  who  steals  a  living  soul 
of  Israel,  to  a  judge  rebelling  against  the  Great  Sanhedrin,  to  a 
false  prophet,  to  him  who  prophesies  in  the  name  of  an  idol,  to 
the  paramour  of  a  married  woman,  and  to  the  collusive  witnesses 
of  the  married  daughter  of  a  priest  who  has  sinned,  and  to  her 
abuser. 

GEMARA  :  Whence  do  we  know  that  choking  applies  to 
the  smiter  of  his  father  or  mother?  From  [Ex.  xxi.  15]  :  "  Put 
to  death  "  ;  and  wherever  the  Scripture  mentions  death  without 
specifying  what  kind,  choking  is  meant.  But  perhaps  the  verse 
cited  means  "  when  he  kills  him  or  her  "  ?  How  can  it  be  sup- 
posed if  one  who  kills  a  stranger  is  executed  by  the  sword,  that 
he  who  kills  his  father  should  be  executed  by  choking,  which  is 
more  lenient  ?  However,  this  is  correct  according  to  him  who 
holds  that  choking  is  lenient ;  but  according  to  him  who  holds 
that  the  sword  is  lenient,  what  can  be  said  ?  Therefore,  from 
[ibid.,  ibid.  12]  :  "  He  that  smiteth  a  man  so  that  he  die,"  and 
from  [Num.  xxxv.  21]  :  "  Smitten  with  his  hand  that  he  die,"  we 
infer  that  when  it  is  not  mentioned  "  that  he  die,"  it  means  smitten 
only.  And  it  was  necessary  for  the  Scripture  to  write  both  of  the 
following  passages,  namely  [Ex.  xxi.  12]  :  "  He  that  smiteth  a 
man  so  that  he  die,"  and  [Num.  xxxv.  30] :  "  Whoever  it  be  that 
killeth  a  person  (soul),"  for  if  the  first  only  were  written,  one  might 
say  that  one  is  liable  only  when  he  kills  an  adult,  but  not  a 
minor ;  and  if  the  second  only  were  written,  one  might  say  that 
one  is  liable  even  if  he  killed  a  miscarried  child  or  one  who  was 
born  in  the  eighth  month,  and  therefore  both  are  necessary. 

But  from  the  above  theory  it  is  to  be  understood  that  if  one 
smote  his  father  he  is  guilty  of  a  capital  crime  even  if  he  did  not 

245 


246  THE   BABYLONIAN    TALMUD. 

wound  him.  Why,  then,  does  the  succeeding  Mishna  state  that 
he  is  not  guilty  unless  he  wounds  him  ?  This  is  inferred  from 
[Lev.  xxiv.  2i] :  "And  he  that  smiteth  a  beast  shall  make  restitu- 
tion for  it,  and  he  that  smiteth  a  man  shall  be  put  to  death."* 
As  concerning  a  beast  the  striker  is  not  liable  unless  he  makes  a 
wound,  as  in  ibid.  i8  it  reads  "nefesh"  (soul,  blood  of  it),  the 
same  is  the  case  if  he  smote  a  person — he  is  not  guilty  unless  he 
made  a  wound.  R.  Jeremiah  opposed  :  According  to  this  theory, 
if  one  has  made  lean  an  animal  by  using  it  to  carry  stones, 
should  he  not  be  responsible  ?  Therefore  we  must  say,  as  verse 
30  is  not  necessary  for  this  case,  because  of  verse  18,  apply  it 
to  human  life.  If  so,  why  the  analogy  ?  In  accordance  with  what 
was  taught  by  the  school  of  Hiskia  (above,  p.  233).  But  this  is 
only  correct  for  him  who  agrees  with  the  school  of  Hiskia.  But 
for  him  who  does  not  agree  with  this  theory,  to  what  purpose  is 
the  analogy?  To  teach  that,  as  there  is  no  liability  if  one  wounds 
an  animal  for  the  purpose  of  curing  it,  the  same  is  the  case  with 
a  human  being.  A  similar  question  was  propounded  by  the 
schoolmen  :  May  one  bleed  his  father  to  cure  him  ?  R.  Mathna 
said  :  From  "  Thou  shalt  love  thy  neighbor  as  thyself  "  it  may  be 
inferred  that  he  may.  And  R.  Dimi  b.  Henna  said  :  It  is  inferred 
from  the  analogy  just  mentioned.  As  there  is  no  liability  for 
wounding  an  animal  to  cure,  the  same  is  the  case  with  a  human 
being.  Rabh  did  not  allow  his  son  to  take  out  a  string  from  his 
finger,  lest  he  might  wound  him  unintentionally,  which  is  pro- 
hibited for  one  to  do  to  his  father ;  and  Mar  b.  Rabhina  did  not 
allow  his  son  to  open  for  him  a  wound,  for  the  same  reason. 

R.  Shesheth  was  questioned  :  May  a  son  be  a  messenger  from 
the  court  to  punish  his  father  with  stripes,  or  to  put  him  under 
the  ban  ?f.  Said  Rabba  b.  R.  Huna  :  And  so  also  was  it  taught  by 
the  school  of  R.  Ismael :  Concerning  all  the  crimes  mentioned  in 
the  Torah,  the  court  must  not  appoint  the  son  of  the  criminal  to 
strike,  to  curse  his  father,  etc.,  except  in  the  case  of  a  seducer, 
about  whom  it  reads  [Deut.  xiii.  9]:  "Nor  shall  thy  eye  look 
with  pity  on  him,"  etc. 

MISHNA  //. :  A  son  is  not  guilty  of  a  capital  crime  unless 
he  wounds  his  father  by  striking  him.     Cursing  is  in  one  respect 

*  Lesser's  translation  does  not  correspond. 

\  A  discussion  at  length  about  this  matter  is  omitted  from  the  text,  as  most  of 
the  objections  and  answers  are  already  translated,  or  will  be  translated  in  their  proper 
places.  Here,  however,  it  is  of  no  importance  at  all,  as  the  question  is  solved  by 
Rabha  without  any  objection  or  opposition. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         247 

more  rigorous  than  striking,  as  for  the  latter  one  is  guilty  when 
done  to  his  living  father  only,  and  for  the  former  he  is  guilty  even 
if  he  did  it  after  his  father's  death. 

GEMARA:  The  rabbis  taught :  It  reads  [Lev.  xx.  9]  :  "  His 
father  and  mother  has  he  cursed,"  which  means  even  after  his 
death.  And  this  is  repeated  only  for  this  purpose,  lest  one  say 
that  one  is  guilty  for  striking  his  father  and  for  cursing  him. 
Hence,  as  the  former  applies  to  a  living  father  only,  the  same  is 
the  case  with  the  latter.  But  this  is  correct  only  for  R.  Jonathan, 
as  according  to  him  the  verse  just  cited  is  superfluous ;  but  for 
R.  Jashiah,  who  uses  this  verse  for  inferring  father  or  mother 
(above  p.  192),  whence  does  he  deduce  the  above  statement  ? 
From  [Ex.  xxi.  17]  :  "And  he  that  curseth  his  father,"  etc.  But 
let  the  Mishna  state  that  in  another  respect  striking  is  more 
rigorous  than  cursing,  as  concerning  the  former  one  is  guilty  if 
he  did  so  to  his  father  even  if  he  were  of  another  faith,  which 
is  not  the  case  with  cursing  (according  to  the  opinion  of  some 
Tanaim).  The  Tana  of  our  Mishna  holds  that  cursing  is  com- 
pared to  striking  even  in  the  latter  case ;  i.e.,  one  is  also  guilty  if 
he  curses  his  father  who  is  of  another  faith. 

Shall  we  assume  that  the  Tanaim  of  our  Mishna  differ  in  the 
same  way  as  the  Tanaim  of  the  following  Boraithas,  one  of  which 
states:  If  one's  father  was  a  Samaritan,  he  is  forewarned  against 
striking  him,  but  not  against  cursing ;  and  the  other  states  :  He  is 
forewarned  neither  against  striking  nor  against  cursing  ?  The 
schoolmen  who  learned  these  Boraithas  thought :  Both  Boraithas 
agree  that  at  the  beginning  the  Samaritans  were  true  proselytes 
(this  refers  to  II.  Kings,  vii.  23-34),  but  at  that  time  they  were  de- 
cadent. Hence  the  point  of  their  difference  is  that,  according  to 
one  Boraitha,  striking  is  equal  to  cursing,  and  according  to  the 
other  it  is  not  ?  Nay  !  All  agree  that  they  are  not  equal,  conse- 
quently the  point  of  their  difference  is,  whether  the  ancient 
Samaritans  were  true  proselytes,  or  only  embraced  Judaism  from 
fear  of  the  lions.  Hence  they  were  not  considered  Israelites  at 
all,  but  heathens. 

MISHNA  III.  :  If  one  steals  a  person,  he  is  not  guilty  of  a 
capital  crime,  unless  he  brings  him  upon  his  own  premises. 
R.  Jehudah,  however,  said :  One  is  not  guilty  for  only  bringing 
him  upon  his  premises,  but  after  he  used  him  for  work.  As  it 
reads  [Deut.  xxiv.  7]  :  "And  he  treateth  him  as  a  slave." 

If  one  steals  his  own  son  and  sells  him,  R.  Ismael,  the  son  of 
R.  Johanan  b.  Beroka,  makes  him  guilty  ;  the  sages,  however,  free 


248  THE   BABYLONIAN    TALMUD. 

him.  If  one  steals  a  person  who  is  half  free  and  half  slave,  i.e., 
a  slave  of  two  owners,  one  of  whom  has  freed  him,  R.  Jehudah 
makes  him  guilty,  and  the  sages  free  him. 

GEMARA :  And  the  first  Tana  of  our  Mishna  does  not  re- 
quire  any  work  (notwithstanding  that  so  it  is  written  in  the 
Scripture)?  Said  R.  Ahbah  b.  Rabha:  They  differ  if  he  worked 
with  him  to  the  value  of  less  than  a  perutha.  (According  to  the 
first  Tana  he  is  guilty,  and  according  to  R.  Ismael  he  is  not.) 

R.  Jeremiah  questioned :  How  is  the  law  if  one  steals  a 
person  while  asleep  and  sells  him  in  this  condition,  or  if  he  stole 
a  pregnant  woman  for  the  purpose  of  selling  her  embryo,  is  it 
considered  treating  as  a  slave,  or,  because  he  has  not  done  it  in 
the  usual  manner,  is  it  not  so  considered  ?  Usual  manner !  Let 
him  say  that  there  was  not  any  kind  of  slavery  at  all  ?  He 
speaks  of  when  he  used  the  sleeping  one  as  a  support  and  the 
pregnant  woman  as  a  protection  against  the  wind  (and  as  she  is 
more  stout  because  of  the  embryo,  the  protection  is  stronger). 
And  to  this  was  the  question  :  "  Is  it  considered  slavery,  or,  be- 
cause it  was  in  an  unusual  manner,  is  it  not?  This  question  is 
now  decided. 

The  rabbis  taught :  It  reads  [Deut.  xxiv.  7]  :  "  If  a  man  be 
found  stealing  any  one  of  his  brethren  of  the  children  of  Israel." 
From  this  we  know  only  concerning  a  male,  but  whence  do  we 
know  concerning  the  stealing  of  a  female  ?  It  reads  [Ex.  xxi.  16]  : 
"And  he  that  stealeth  a  man — whatsoever.  However,  from  both 
verses  we  know  about  a  man  who  stole  either  a  male  or  a  female. 
But  whence  do  we  know  that  the  same  is  the  case  when  a  woman 
steals  a  male  or  female  ?  As  to  this,  it  reads  in  the  verse  above 
cited  :  "  Then  shall  that  thief  die,"  meaning  what  person  soever. 

There  is  another  Boraitha :  The  verse  just  cited  means  that 
there  is  no  difference  whether  he  stole  a  male  or  a  female,  a 
proselyte,  or  a  bondsman  who  was  freed,  or  a  minor.  However, 
if  he  stole  him  and  did  not  sell  him,  or  even  if  he  sold  him,  but 
he  is  still  on  his  own  premises,  he  is  not  condemned  to  capital 
punishment.  If  he  sold  him  to  the  father  or  brother  of  the  stolen 
one,  or  to  some  one  else  of  his  relatives,  capital  punishment  does 
apply.  However,  for  stealing  slaves  it  does  not.  This  Boraitha 
was  repeated  by  one  of  the  disciples  before  R.  Shesheth,  and 
he  rejoined :  I  teach :  R.  Simeon  said :  It  reads :  "  From  his 
brethren,"  which  means  that  he  is  not  guilty  unless  he  took  him 
out  from  the  control  of  his  brother.  And  you  teach :  He  is 
guilty  of  a  capital  crime  if  he  sold  him  to  his  father  or  brother. 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         249 

Go  and  teach  that  he  is  free.  (Says  the  Gemara :)  And  what  is 
the  difficulty  ?  Why  not  say  that  the  Boraitha  is  in  accordance 
with  the  rabbis  ?  This  cannot  be  supposed,  as  there  is  a  rule 
that  all  the  anonymous  Mishnayoth  are  in  accordance  with  R. 
Mair,  anonymous  Tosephtas  in  accordance  with  R.  Nehemiah, 
anonymous  Siphra  in  accordance  with  R.  Jehudah,  and  anony- 
mous Siphri  in  accordance  with  R.  Simeon.  And  all  of  them  are 
after  R.  Aqiba's  instructions.  And  the  Boraitha  above  cited  is 
to  be  found  in  Siphri. 

"If  one  stole  his  own  son"  etc.  What  is  the  reason  of  the 
rabbis,  who  free  him  ?  Said  Abayi :  It  reads  [Deut.  xxiv.  7]  : 
"  If  a  man  be  found  '  stealing,'  "  which  means  to  exclude  him 
who  is  often  with  him.  Said  R.  Papa  to  Abayi :  According  to 
your  theory  [ibid.  xxii.  22]  :  "  If  a  man  be  found  lying  with  a 
woman,"  etc.,  is  also  to  be  explained  to  exclude  him  who  is  often 
with  her ;  e.g.,  in  the  house  of  so  and  so,  which  is  crowded,  and 
men  and  women  are  often  together — should  one  not  be  liable  for 
adultery?  And  he  answered  :  I  call  your  attention  to  [Ex.  xxi. 
16]  :  "  And  he  will  be  found  in  his  hand  "  (which  is  not  the  case 
with  a  father,  whose  son  is  usually  in  his  hand).  Said  Rabha : 
According  to  this  theory,  teachers  of  schoolchildren  and  masters 
with  their  disciples  are  considered  often  together,  and  if  it  hap- 
pened that  one  of  the  masters  stole  one  of  the  children,  he  is 
free  from  capital  punishment. 

"  Half  a  slave,''  etc.  There  is  a  Mishna  (First  Gate,  p.  193): 
R.  Jehudah  says  that  there  is  no  disgrace  for  slaves.  And  ibid. 
195  {q.v}^,  the  reason  of  R.  Jehudah  is  given  from  [Deut.  xxv.  1 1]. 
However,  what  would  be  his  reason  here  ?  Thus :  "  From  his 
brethren  "  means  to  exclude  slaves  ;  "  children  of  Israel  "  means 
to  exclude  a  half  slave ;  "  of  the  children  of  Israel "  means  again 
an  exclusion,  and  means  to  exclude  the  same.  And  there  is  a 
rule  that  an  exclusion  after  an  exclusion  comes  to  add.  Hence 
a  person  who  is  half  slave  and  half  free  is  added  to  those  for 
whom  guilt  is  incurred.  The  rabbis  do  not  hold  his  theory  that 
"  of  his  brethren  "  means  to  exclude  slaves,  as  a  slave  is  also  con- 
sidered a  brother  who  is  obliged  to  perform  all  the  command- 
ments which  are  obligatory  on  a  woman.  Hence,  according  to 
them,  "  children  of  Israel  "  means  to  exclude  a  slave,  and  "  of 
the  children  of  Israel "  means  to  exclude  half  a  slave  and  half  a 
free  man.  But  whence  do  we  know  about  the  forewarning  of 
stealing  a  person  of  Israel  ?  According  to  R.  Jashiah  :  From 
[Ex.  XX.   13]:  "Thou  shalt  not  steal."     And  according   to    R. 


250  THE    BABYLONIAN    TALMUD. 

Johanan  :  From  [Lev.  xxv.  42]  :  "  They  shall  not  be  sold  as 
bondmen  are  sold."  And  they  do  not  differ,  as  one  master 
counts  the  negative  commandment  of  stealing,  and  the  other  the 
negative  commandment  of  selling. 

The  rabbis  taught:  "Thou  shalt  not  steal,"  in  the  third  com- 
mandment, means  human  beings.  But  perhaps  it  means  simply 
money  ?  It  may  be  said :  Go  and  learn  it  from  the  thirteen 
methods  by  which  the  Torah  is  to  be  explained,  one  of  which  is 
that  a  word  or  (passage)  is  to  be  explained  from  its  connection 
or  from  what  follows,*  and  as  the  connection  of  this  passage 
speaks  of  human  beings,  you  must  explain  also  that  "  stealing  " 
appHes  to  human  beings.  There  is  another  Boraitha:  It  reads 
[Lev.  xix.  11]  :  "Ye  shalt  not  steal,"  meaning  money.  You  say 
money,  but  perhaps  it  means  human  beings?  Go  and  learn  it 
from  the  thirteen  methods,  etc.,  one  of  which  is  that  a  word  or 
(passage)  is  to  be  explained  from  what  follows.  And  as  the  con- 
tinuation of  this  passage  is  concerning  money  [ibid.  13],  so  also 
stealing  is  to  be  explained  as  meaning  money. 

It  was  taught :  If  there  were  two  parties  of  witnesses,  and  one 
party  testified  that  one  stole  a  human  being  and  the  other  testi- 
fied that  he  sold  him,  and  thereafter  one  of  the  parties,  or  both, 
were  found  collusive,  they  are  not  to  be  put  to  death,  according 
to  Hiskia.  According  to  R.  Johanan,  however,  they  are.  Hiskia's 
reason  is  that  he  holds  in  accordance  with  R.  Aqiba,  who  used 
to  say  (Last  Gate,  p.  135) :  A  case,  but  not  half  a  case.  And  R. 
Johanan  is  in  accordance  with  the  rabbis,  who  said  :  Even  for 
half  a  case.  R.  Papa,  however,  said,  concerning  the  witnesses  of 
selling :  All  agree  that  they  are  to  be  put  to  death.  But  the 
point  of  their  difference  is  concerning  the  witnesses  of  the  steal- 
ing. According  to  Hiskia  they  are  not  to  be  put  to  death,  because 
stealing  and  selling  are  two  separate  crimes.  R.  Johanan,  how- 
ever, is  of  the  opinion  that  the  stealing  is  the  beginning  of  the 
selling.  The  latter,  however,  agrees  that  the  first  witnesses  con- 
cerning a  stubborn  and  rebellious  son  are  not  to  be  put  to  death 
if  found  collusive,  as  they  could  say  :  Our  intention  was  only 
that  he  should  be  punished  with  stripes,  as  it  is  said  above  that 
the  son  in  question  is  not  put  to  death  unless  he  first  received 
stripes. 

Said  Abayi :  There  are  three  cases  concerning  a  stubborn  and 


*  "  We  refer  the  reader  for  the  real  meaning  of  this  method  to  Mielziner's  "  In- 
troduction to  the  Talmud  "  (par.  No.  50  of  page  174). 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).         251 

rebellious  son.  In  two  of  them  all  agree,  and  in  one  of  them 
they  differ.  Namely,  concerning  the  first  witnesses  in  this  case, 
all  agree  that  they  are  not  to  be  put  to  death  if  collusive,  as  they 
could  say  :  Our  intention  was  only  that  he  should  receive  stripes. 
And  their  claim  must  be  taken  into  consideration.  And  also  all 
agree  concerning  the  second  witnesses  of  same,  that  they  are  to 
be  put  to  death,  as  the  first  witnesses  are  considered  as  concern- 
ing stripes  only.  Hence  the  second  witnesses  only  would  be  the 
cause  of  death  to  the  criminal  son,  if  they  were  not  collusive ; 
and  they  have  done  the  whole  case  even  according  to  R.  Aqiba, 
who  requires  the  whole,  and  not  half  a  case. 

And  the  third  case  in  which  they  differ  is,  if  there  were  two  par- 
ties of  witnesses,  one  of  which  testifies:  "In  our  presence  he 
stole,"  and  the  other  testified :  "  In  our  presence  he  consumed." 
And  as  the  law  regarding  the  criminal  son  dictates  that  he  is  not 
to  be  put  to  death  unless  he  stole  from  his  father  and  consumed  on 
the  premises  of  strangers,  both  things  depend  on  each  other. 
Hence  according  to  R.  Aqiba  each  of  the  parties  has  done  only 
half  a  case.  And  if  one  or  both  were  found  collusive,  they  can- 
not be  put  to  death  for  half  a  case  ;  and  according  to  the  rabbis 
they  can,  as  they  make  one  guilty  for  half  a  case. 

MISHNA  IV.  :  A  judge  rebelling  against  the  Great  Sanhe- 
drin  (to  whom,  as  stated  in  the  first  Mishna  of  this  chapter,  chok- 
ing applies)  is  commanded  in  the  Scripture  as  in  Deut.  xvii.  8-13. 
There  were  in  Jerusalem  (at  the  time  of  the  Temple)  three  courts  : 
one  was  situated  at  the  gate  of  the  Temple  Mount  (this  was  the 
east  gate,  inside  of  the  surrounding  wall,  preceding  the  women's 
court) ;  and  another  was  situated  after  the  women's  court,  but 
preceding  the  court  of  the  common  Israelites  ;  and  the  third  one 
was  situated  in  the  Temple  treasury  for  congregational  sacrifices. 
And  in  case  a  judge  in  the  country  had  a  dispute  about  the  law 
with  his  colleagues,  as  to  which  the  Scripture  commands  to  bring 
their  case  before  the  court  in  Jerusulem,  they  came  to  the 
first  court,  situated  at  the  above-mentioned  gate.  And  the  judge 
in  question  related  his  case  before  the  court  :  I  have  lectured 
thus  and  thus,  and  my  colleagues  have  lectured  otherwise — thus 
and  thus.  I  have  taught  in  accordance  with  my  lecture  so  and  so, 
and  my  colleagues  so  and  so.  And  if  this  court  were  able  to  de- 
cide it  traditionally,  they  rendered  their  decision  ;  and  if  not,  they 
came  before  the  other  court,  explaining  the  same  again.  If  this 
court  were  able  to  decide  it  traditionally,  they  rendered  their 
decision  ;  and  if  not,  all  of  them  came  to  the  Great  Sanhedrin, 


252  THE    BABYLONIAN    TALMUD. 

which  was  in  the  Temple  treasury,  from  which  the  law  proceeds  to 
all  Israel,  wherever  found.  As  it  reads  [ibid.,  ibid,  lo]  :  "  From  that 
place  which  the  Lord  will  choose,  and  thou  shalt  observe  to  do  ac- 
cording to  all  that  may  instruct  thee."  Then  if  the  judge  returns 
to  his  own  city  and  continues  his  lectures  as  before,  he  is  not  cul- 
pable. If,  however,  he  gives  his  decision  for  practice,  he  is  sub- 
ject to  capital  punishment.  As  it  reads  [ibid.,  ibid.  12]  :  "And 
the  man  that  will  act  presumptuously,"  etc.,  which  means  that  he 
is  not  culpable  unless  he  decides  for  practice. 

A  disciple  who  is  not  a  judge,  who  decides  for  practice  against 
the  decision  of  the  Great  Sanhedrin,  is  not  culpable.  Hence 
the  rigorousness  which  lies  upon  him,  not  to  give  his  decision 
in  any  law  (until  he  shall  be  forty  years  of  age),  becomes  lenient 
concerning  the  punishment. 

GEMARA:  The  rabbis  taught:  It  reads  [ibid.,  ibid.  8]: 
"  khi  j'pola,"  literally,  "  if  it  will  wonder."  Hence  the  passage 
speaks  of  the  wonder  (prime)  judge  of  the  courts.  "  Mimcho  " — 
"  from  thee,"  means  a  counsellor.  As  it  reads  [Nahum,  i.  11]  : 
"  There  is  gone  forth  (mimcho)  out  of  thee  he  that  devised  evil 
against  the  Lord,  the  counsellor  of  infamous  things."  "  Dabhor" 
— "  a  matter,"  means  a  Halakha  ;  L'michphat  means  a  decision 
of  money  matters.  "  Between  blood  and  blood  "  means  blood  of 
menstruation  and  the  blood  of  purification  after  birth  (referring 
to  Lev.  xii.  4)  or  blood  of  infliction.  "  Between  plea  and  plea  " 
means  criminal  and  civil  cases  and  cases  of  stripes ;  "  Between 
lepers  and  lepers" — bodily  leprosy,  leprosy  of  houses,  of  dress,  etc.; 
"  matters  " — excommunications,  appraisement  of  things  belong- 
ing to  the  sanctuary  ;  "controversy" — a  thing  which  came  from 
a  controversy  between  a  husband  and  wife  (ref.  to  Num.  v.  11-25); 
breaking  the  neck  of  the  heifer  (Deut.  xxi.) — the  purification  of 
men  who  were  afflicted  with  leprosy  ;  "  within  thy  gates  " — about 
gathering  grain  of  the  poor,  forgetters  of  sheaves  and  peah  (corner 
tithe)  ;  "  shalt  thou  arise  " — from  thy  court.  "  Get  thee  up  " — 
infer  from  this  that  the  Temple  was  the  highest  building  in  all 
Jerusalem,  and  the  land  of  Israel  was  situated  higher  than  all 
other  countries.  "  Unto  the  place  " — infer  from  this  that  the 
place  is  the  cause  of  the  situation  of  the  high  court. 

The  rabbis  taught :  A  rebelling  judge  is  not  guilty  unless  he 
gave  his  decision  in  a  matter  to  which,  if  done  intentionally, 
korath  applies  ;  and  if  unintentionally,  a  sin-offering.  So  is  the 
decree  of  R.  Mair  R.  Jehudah  said  :  As  to  a  matter  of  which  the 
source  is  to  be  found  in  the  Scripture,  and  the  interpretation   is 


TRACT   SANHEDRIN   (SUPREME   COUNCIL).         253 

by  the  scribes.  R.  Simeon,  however,  maintains :  Even  as  to  one 
observation  of  the  many  observations  of  the  scribes. 

Said  R.  Hunab.  Hinna  to  Rabha:  Can  you  explain  to  me  this 
Boraitha  which  has  enumerated  all  the  cases  inferred  from  Deut. 
xvii.  8,  in  accordance  with  R.  Mair's  decree  ?  And  Rabha  said 
to  R.  Papa:  Go  and  explain  it  to  him.  And  he  explained  thus: 
The  Boraitha  which  states  a  counsellor,  means  him  who  is  able  to 
establish  leap  years  and  to  appoint  the  days  of  the  month.  And 
a  difference  of  opinions  may  cause  the  eating  of  leavened  bread  on 
Passover ;  namely,  according  to  some  a  leap  year  may  be  estab- 
lished during  the  whole  month  of  Adar,  and  according  to  others 
only  until  Purim.  Hence  if  the  law  is  in  accordance  with  one  of 
them,  and  it  was  done  to  the  contrary,  people  would  eat  leaven  on 
Passover.  The  Halakha  which  is  mentioned  in  the  same  Boraitha 
means  the  difference  of  opinion  between  R.  Johanan  and  Resh 
Lakish  concerning  the  tenth  day  of  menstruation — whether  it  is 
still  to  be  counted  menstruation  blood  or  of  infliction  (explained 
in  Tract  Nidda,  72b).  Criminal  cases  means  the  case  concerning 
the  daughter  of  a  coercer  mentioned  above.  Concerning  blood  of 
menstruation,  Akabia  b.  Mahalalel  and  the  rabbis  differ  (Nidda, 
19a).  Concerning  blood  of  purification,  Rabh  and  Levi  differ 
(ibid.  35b).  Concerning  blood  of  infliction,  R.  Eliezer  and  R. 
Jehoshua  differ  (ibid.  36b).  Concerning  civil  cases,  Samuel  and 
R.  Abuhu  differ  (above,  p.  7).  Concerning  criminal  cases, 
Rabbi  and  the  rabbis  differ  (above,  p.  3)  ;  stripes,  R.  Ismael  and 
the  rabbis  difl"er  (in  the  first  Mishna  of  this  tract) ;  leprosies,  R. 
Jehoshua  and  the  rabbis  differ  (Nidda,  19b)  ;  leprosy  of  houses, 
R.  Elazar  b.  Simeon  and  the  rabbis  differ  (above,  p.  4) ;  leprosy 
of  dresses,  Jonathan  b.  Abtulmes  and  the  rabbis  (Nidda,  19a); 
appraisement  of  men,  R.  Mair  and  the  rabbis  (Arachin,  5a)  ;  ex- 
communications, Jehudah  b.  Bathyra  and  the  rabbis  (ibid.  28b) ; 
sanctification,  Eliezer  b.  Jacob  and  the  rabbis  (above,  p.  32); 
controversies  concerning  a  woman  who  is  suspected  by  her  hus- 
band, R.  Eliezer  and  R.  Jehoshua  (Sota,  2a) ;  breaking  the  neck 
of  the  heifer,  R.  Ehezer  and  R.  Aqiba  (ibid.  45b) ;  purification  of 
leprosy,  R.  Simeon  and  the  rabbis  (above,  p.  137);  gathering,  the 
schools  of  Shamai  and  Hillel  (Tract  Negaim,  XIV.  9) ;  forgotten 
sheaves  (the  same,  ibid,,  ibid.);  peah,  R.  Ismael  and  the  rabbis 
(Themura,  6a).  (And  of  all  of  them,  the  sources  are  in  the  Scrip- 
ture and  the  explanation  is  by  the  scribes.) 

"  There  were  three  courts,''  etc.  Said  R.  Kahana  :  If  he  says, 
"  I  have  it  from  a  tradition,"  and  they  (the  Great  Sanhedrin)  also 


254  THE    BABYLONIAN    TALMUD. 

say  the  same,  he  is  not  put  to  death.  And  the  same  is  the  case 
if  he  says  :  So  is  it  according  to  my  opinion ;  and  they  also  say  : 
According  to  our  opinion.  And  so  much  the  more  if  he  says :  I 
have  it  from  a  tradition  ;  and  they  say :  So  is  it  according  to  our 
opinion.  And  only  when  they  say  :  We  have  it  from  a  tradition; 
and  he  says  :  According  to  my  opinion  it  is  the  contrary — then  (if 
he  gives  his  decision  for  practice)  he  is  put  to  death.  And  an 
evidence  in  support  of  this  is  that  Akabia  b.  Mehalalel,  who  decided 
against  the  Great  Sanhedrin,  was  not  killed.  R.  Elazar,  however, 
maintains  that  even  if  he  says,  "  I  have  it  from  a  tradition,"  and 
they  say,  "  So  it  is  according  to  our  opinion,"  he  is  put  to  death, 
for  the  reason  that  quarrels  should  not  increase  in  Israel.  And 
your  evidence  from  Akabia  b.  Mehalalel  does  not  hold  good,  as 
he  was  not  killed  because  his  decision  was  not  for  practice.  An 
objection  was  raised  from  our  Mishna:  I  have  lectured,  etc. 
Does  not  the  latter  expression  mean  that  he  taught  so  from  a 
tradition  ?  Nay  !  "  I  taught  so  because  of  my  opinion,  and  they 
taught  so  from  a  tradition." 

Come  and  hear  another  objection:  R.  Jashiah  said :  The 
following  three  things  I  was  told  by  Zeerah,  one  of  the  citizens 
of  Jerusalem  :  A  husband  who  has  sacrificed  his  claim  against  his 
wife,  it  is  considered  (and  his  wife  is  not  to  be  brought  to  the 
court)  ;  and  the  same  is  the  case  if  the  parents  of  a  stubborn  and 
rebellious  son  have  sacrificed  their  claim  ;  and  the  same  is  it  also 
if  the  high  court  were  willing  to  sacrifice  their  honor  in  the  case 
of  a  rebelling  judge.  And  when  I  came  to  my  brethren  in  the 
South,  they  yielded  to  me  concerning  the  first  two,  but  not  con- 
cerning the  third — for  the  reason  that  quarrels  should  not  be 
increased  in  Israel.  Hence  the  reason  as  to  a  rebelling  judge  is 
not  to  increase  quarrel,  and  there  is  no  difference  whether  he 
says,  "  I  have  it  from  a  tradition  "  or  "  from  my  own  opinion." 
This  objection  remains. 

There  is  a  Boraitha  :  R.  Jose  said  :  Formerly  there  was  no 
quarrel  in  Israel,  but  a  court  of  seventy-one  was  situated  in  the 
Temple  treasury,  and  two  courts  of  twenty-three  sat  at  the  gate 
of  the  Temple  Mount  and  at  the  gate  of  the  common  Israelites ; 
and  the  same  courts  of  twenty-three  were  established  in  every 
city  of  Israel ;  and  if  there  was  a  matter  of  difference  concerning 
which  it  was  necessary  to  inquire,  they  used  to  bring  it  before  the 
court  of  their  own  city.  And  if  they  were  able  to  decide  from  a 
tradition,  they  did  so  ;  and  if  not,  they  brought  it  to  the  court  of 
a  near-by  city  ;  and  if  also  they  could  not  decide  it,  they  brought 


TRACT    SANHEDRIN    (SUPREME    COUNCIL).  255 

it  before  the  court  which  was  at  the  gate  of  the  Temple  Mount, 
and  thereafter  to  that  of  the  common  Israehte,  and  he  related  to 
them  :  So  have  I  lectured,  etc.,  and  so  have  I  taught,  etc.  And 
if  they  had  any  tradition  concerning  this,  they  explained  it ;  and  if 
not,  all  of  them  came  before  the  court  of  the  Temple  treasury, 
in  which  the  judges  sat  from  the  morning  daily  offering  until 
that  of  the  evening  on  week  days.  And  on  Sabbaths  and  on 
holidays  they  used  to  take  their  place  in  the  chamber  of  the  sur- 
rounding wall,  and  the  question  was  laid  before  them.  If  they 
could  decide  it,  they  did  so  ;  and  if  not,  they  stood  up  to  vote, 
and  their  decision  was  according  to  the  majority.  However,  since 
the  disciples  of  Shamai  and  Hillel  who  had  not  accomplished 
their  study  increased  in  number,  quarrels  were  increased  in  Israel, 
and  it  seemed  as  if  the  law  came  from  two  different  lawgivers. 

From  the  court  of  the  Great  Sanhedrin  they  used  to  write 
and  send  to  all  the  cities  of  Israel  :  Whosoever  is  wise,  modest, 
and  is  liked  in  the  eyes  of  his  people  may  be  a  judge  in  his  own 
city.  And  thereafter,  if  he  deserved  it,  he  was  advanced  to  the 
court  at  the  gate  of  the  Temple  Mount ;  and  farther  on,  until  he 
reached  to  be  a  member  in  the  court  of  the  Temple  treasury. 

A  message  was  sent  from  Palestine  :  Who  is  the  man  who  has 
surely  a  share  in  the  world  to  come  ?  He  who  is  modest,  bends 
his  head  when  he  goes  in,  and  the  same  when  he  goes  out ; 
is  always  studying  the  Torah,  and  does  not  become  proud  thereof. 
And  the  rabbis  gave  their  attention  to  R.  Ula  b.  Abba  (who 
possessed  all  these  qualifications). 

'' Returned  to  his  own  city,''  etc.  The  rabbis  taught:  He 
is  not  guilty  unless  he  himself  practised  according  to  his  decision  ; 
or,  he  decided  so  for  others,  and  they  practised.  It  is  correct 
when  he  so  decided  for  others,  etc.,  as  if  he  did  so  before  he  was 
not  subject  to  a  capital  punishment.  But  if  he  himself  has  done 
according  to  his  decision,  he  is  guilty  even  before  he  goes  to  the 
higher  courts  ?  Previously,  if  he  gave  a  good  reason  for  his  de- 
cision, it  would  be  accepted  ;  but  after  he  came  from  the  court, 
no  longer  is  any  reason  accepted. 

MISHNA  V. :  The  punishment  of  him  who  transgresses  the 
decision  of  the  scribes  is  more  rigorous  than  for  that  which  is 
plainly  written  in  the  Scriptures,  e.^:,  if  one  says,  "  I  do  not 
see  any  commandment  in  the  Torah  about  tephyllin  (phylac- 
teries)," with  the  intention  of  transgressing  that  which  is  written 
concerning  them  (i.e.,  giving  another  interpretation  to  Deut.  vi. 
8,  etc.),  he  is  free.     However,  if  he  (the  rebelling  judge)  should 


256  THE    BABYLONIAN   TALMUD. 

decide  that  the  phylacteries  must  contain  five  Totaphoth  (por- 
tions), instead  of  the  four  enacted  by  the  scribes,  he  is  guilty. 

GEMARA :  Said  R.  Elazar  in  the  name  of  R.  Oshia  :  One  is 
not  considered  a  rebelling  judge  unless  he  decides  upon  a  thing 
the  sources  of  which  are  in  the  Scripture  and  the  explanation  is 
by  the  scribes,  and  there  is  something  to  add.  However,  if  it  is 
added,  it  harms  the  whole  matter;  and  we  cannot  find  such  a 
thing  in  the  whole  Scripture  but  phylacteries,  according  to  E. 
Jehudah  (who  maintains  the  four  portions  in  question  are  to  be 
attached  one  to  the  other*). 

MISHNA  V. :  (The  judge  in  question)  was  not  put  to  death 
by  the  court  of  his  own  city,  and  also  not  by  the  court  of  the 
great  Sanhedrin  which  was  established  temporarily  in  the  city  of 
Jamnia,  but  was  brought  to  the  supreme  council  in  Jerusalem, 
kept  in  prison  until  the  feast  days,  and  executed  on  one  of  the 
feast  days.  As  it  reads  [Deut.  xvii.  13]  :  "And  all  the  people 
shall  hear  and  be  afraid."  So  R.  Aqiba.  R.  Jehudah,  how- 
ever, maintains  that  he  must  not  be  tortured  by  postponing  the 
execution,  but  must  be  put  to  death  immediately  after  being  sen- 
tenced ;  and  messengers  were  sent  out  to  all  the  inhabitants  of 
Israel  that  the  judge  so  and  so  was  sentenced  and  executed  by 
the  court  for  such  and  such  a  crime. 

GEMARA:  The  rabbis  taught  concerning  what  was  said  by 
R.  Aqiba  mentioned  in  our  Mishna :  R.  Jehudah  rejoined  : 
Does  the  Scripture  read  :  "The  people  shall  see  and  be  afraid  ?  " 
It  reads  :  "  They  shall  /tear  and  be  afraid."     Why,  then,  should 

*  For  the  explanation  of  this  passage  we  published  a  book,  "  Ursprung  und 
Entwickelung  des  Phylacterien  Ritus  bei  den  Juden  "  (Pressburg,  1883),  in  which 
it  is  explained  thoroughly.  It  is  remarkable  that  the  chief  commentator  of  the 
Talmud  (Rashi)  does  not  give  any  sensible  explanation  hereon,  other  than  that  he 
dislikes  the  interpretation  mentioned  in  our  text  in  parentheses,  and  he  would  say  that 
the  expression,  "  according  to  R.  Jehudah,"  means  what  was  said  by  him  elsewhere 
— that  one  is  not  guilty  unless  the  matter  discussed  contains  a  study  which 
relies  upon  the  teaching  of  the  sages  how  to  practise.  Thosphat  remarks  that 
R.  Oshia,  the  author  of  this  saying,  ignores  all  that  was  inferred  from  Deut.  xvii.  8, 
said  above,  without  any  other  explanation.  All  the  other  commentators,  however, 
keep  silent. 

Our  book,  mentioned  above,  is  written  in  the  language  of  the  Talmud,  and  the 
very  essence  of  this  strange  passage  is  that  this  Mishna  was  written  after  the  Jewish 
Christians  began  to  add  to  the  four  portions  of  the  Scripture  (viz. :  Ex.  xiii.  i-io  ; 
ibid.,  ibid.  11-17;  Deut.  vi.  4-9  ;  and  ibid.  xi.  13-21)  the  first  portion  of  John  in  the 
New  Testament.  For  the  sources  from  which  we  establish  that  so  was  the  custom 
of  the  Jewish  Christians  in  the  first  centuries,  A.C.,  we  refer  to  the  above-mentioned 
book,  and  also  to  our  little  book,  "  The  History  of  Amulets,  Charms,  and  Talismans," 
published  in  English  (New  York,  1893). 


TRACT    SANHEDRIN    (SUPREME   COUNCIL).         257 

this  man  be  tortured?  Therefore  I  say  that  he  is  executed 
immediately,  and  messengers  are  sent  out  to  notify  the  people. 

The  rabbis  taught :  The  following  four  crimes  must  be 
heralded — of  a  seducer,  a  stubborn  and  rebellious  son,  a  rebelling 
judge,  and  collusive  witnesses.  Concerning  the  first  three  it 
reads  :  "All  the  people  of  Israel  (shall  hear  and  be  afraid)."  And 
concerning  collusive  witnesses  it  reads  [Deut.  xix.  20]  :  "And 
those  who  remain  shall  hear " — because  not  all  of  Israel  are 
qualified  to  be  witnesses. 

MISHNA  VI. :  A  false  prophet  who  is  to  be  sentenced  by  the 
court  is  only  he  who  prophesies  what  he  (^personally)  has  not 
heard  and  what  he  was  not  told  at  all.  However,  he  who  does 
not  proclaim  what  he  was  told  to  do,  or  did  not  listen  to  another 
prophet,  or  he  who  acted  against  what  he  himself  was  instructed 
by  Heaven,  his  death  depends  upon  Heaven.  As  it  reads  [ibid, 
xviii.  19]  :  "I  will  require  it  from  him." 

He  who  prophesied  in  the  name  of  an  idol,  saying,  "  So  and 
so  was  said  by  such  and  such  an  idol,"  although  it  corresponds 
exactly  with  the  Hebrew  law,  he  is  punished  by  choking.  The 
same  was  the  case  with  him  who  had  intercourse  with  a  married 
woman,  as  soon  as  she  comes  under  the  control  of  her  husband, 
even  before  she  has  had  intercourse  with  him.  The  same  punish- 
ment applies  to  the  collusive  witnesses  of  the  married  daughter 
of  a  priest,  and  also  to  her  abuser,  there  is  a  difference  between 
this  case  and  all  other  cases  of  collusive  witnesses,  who  are  to  be 
punished  with  the  same  death  which  would  apply  to  the  accused 
if  it  were  true ;  and  also  between  the  adulterer  in  this  case  and 
other  adulterers  to  whom  the  death  of  those  abused  applies. 

GEMARA:  The  rabbis  taught  :  Concerning  prophecy,  there 
are  three  who  are  to  be  sentenced  by  the  court ;  viz.,  he  who 
prophesies  what  he  has  not  heard,  he  who  prophesies  what  was 
not  said  to  him,  and  he  who  prophesies  in  the  name  of  an  idol. 
And  there  are  three  whose  death  is  by  Heaven ;  viz.,  he  who 
does  not  proclaim  his  prophecy,  he  who  acts  against  what  he  was 
told  by  another  prophet,  and  he  who  acts  against  his  own 
prophecy. 

Whence  is  this  deduced?  Said  R.  Jehudah  in  the  name  of 
Rabh  :  It  reads  [Deut.  xviii.  20]  :  "  But  the  prophet  who  may  pre- 
sume to  speak  a  word  in  my  name  "  means  him  who  has  prophesied 
what  he  has  not  heard  ;  "  which  I  have  not  commanded  him  " — 
although  it  was  commanded  to  his  colleague.  "  Or  who  may 
speak  in  the  name  of  other  gods  "  means  in  the  name  of  any 
17 


258  THE   BABYLONIAN   TALMUD. 

idol.  "  That  prophet  shall  die  "  means  by  choking,  as  choking 
applies  to  all  the  deaths  which  are  mentioned  in  the  Scriptures 
without  specifying  which.  And  the  other  three  above  mentioned 
are  inferred  from  the  preceding  verse  [19]  :  "A  man  who  will  not 
hearken,"  etc. — which  is  to  be  understood  both  of  him  who  does 
not  make  the  people  hear  it  and  him  who  himself  does  not  listen 
to  it — which  ends  :  "  I  will  require  it  of  him."  (Now  the  illustra- 
tions.) He  who  prophesies  what  he  has  not  heard — e.g.,  Zede- 
kiah  ben  Kenaanah,  of  whom  it  is  written  [IL  Chron.  xviii.  10]  : 
"Made  himself  horns  of  iron,"  etc.  But  why  was  he  guilty? 
Did  not  the  spirit  of  Naboth  make  him  err  ?  As  it  reads  [ibid., 
ibid.  19  to  21]  :  "And  the  Lord  said.  Who  will  persuade  Achab, 
the  king  of  Israel,  that  he  may  go  up  and  fall  at  Ramoth-gilead  ? 
And  one  spake  saying  after  this  manner,  and  another  saying 
after  that  manner.  Then  came  forth  a  spirit,  and  placed  himself 
before  the  Lord,  and  said,  I  will  persuade  him.  And  the  Lord 
said  unto  him,  Wherewith  ?  And  he  said,  I  will  go  forth  and  I 
will  become  a  lying  spirit  in  the  mouth  of  all  his  prophets. 
And  he  said,  Thou  shalt  persuade  him,  and  also  prevail ;  go 
forth  and  do  so."  And  to  the  question:  What  spirit?  R.  Jo- 
hanan  said  :  The  spirit  of  Naboth  Haisraeli.  And  what  is  meant 
by  "go  forth"?  R.  Jehudah  said:  Go  outside  of  the  fence  of 
my  glory  (as  a  liar  must  not  remain  in  it,  hence  it  was  not  Zede- 
kiah's  fault,  as  he  was  deceived  by  the  spirit)  ?  He  ought  to  have 
given  his  attention  to  what  was  said  by  R.  Itz'hak :  The  sense  of 
a  divine  oracle  is  given  by  Heaven  to  many  prophets  equally; 
the  language,  however,  by  the  prophets  cannot  be  identical  even 
in  two  of  them,  as  each  prophet  expresses  it  in  his  own  language 
— ^•^-  [J^r-  ^li^-  16]  •  "  Thy  hastiness  hath  deceived  thee — the 
presumption  of  thy  heart  "  ;  and  [Ob.  i.  3]  :  "  The  presumption  of 
thy  heart  hath  beguiled  thee."  Here,  however,  it  reads  [H. 
Chron.  xviii.  1 1]  :  "And  all  the  prophets  so  prophesied,  saying, 
Go  up  against  Ramoth-gilead,"  etc.  Hence,  as  all  prophesied  in 
identical  language,  he  ought  to  have  known  that  it  was  not  a  true 
prophecy.  But  perhaps  Zedekiah  did  not  know  what  was  said 
by  R.  Itz'hak  ?  There  was  Jehoshaphat,  who  told  him  that.  As 
it  reads  [ibid.,  ibid.  6]  :  "  Is  there  not  a  prophet  of  the  Eternal 
besides  ?  "  And  to  the  question  of  Achab  :  Are  not  all  these,  who 
prophesy  in  the  name  of  the  Lord,  sufificient?  Jehoshaphat 
answered :  I  have  a  tradition  from  my  grandfather's  house  that 
the  sense  of  a  divine  oracle  is  given  by  Heaven,  etc.  And  here 
I  hear  the  same  version  from  all  of  them.     He  who  prophesies 


TRACT   SANHEDRIN    (SUPREME   COUNCIL).        259 

what  was  not  said  to  him — e.g.,  Chananyah  ben  Azzur,  who  said 
[Jen  xxviii.  2]  :  "  Thus  hath  said  the  Lord  ...  I  have  broken  the 
yoke."  And  this  was  only  by  an  a  fortiori  conclusion,  drawn 
from  what  was  said  by  Jeremiah  [ibid.  49]  :  "  Thus  hath  said  the 
Lord  .  .  .  behold,  I  will  break  the  bow  of  Elam."  And  his  a 
fortiori  conclusion  was  thus :  Elam,  who  came  only  to  assist  the 
king  of  Babylon,  should  be  broken ;  the  king  of  Babylon,  who 
himself  came  to  destroy  the  kingdom  of  Judah,  so  much  the 
more  should  be  broken.  [Said  R.  Papa  to  Abayi :  But  this  illus- 
tration does  not  correspond,  as  such  a  prophecy  was  not  given 
to  any  one  ?  And  he  answered  :  For  if  such  an  a  fortiori  con- 
clusion were  to  be  drawn,  it  is  equal  to  its  having  been  said  to 
some  one  else ;  however,  it  was  not  said  to  him  directly.]  He 
who  prophesied  in  the  name  of  an  idol — e.g.,  the  prophets  of 
Baal.  He  who  does  not  proclaim  the  prophecy — e.g.,  Jonah  b. 
Amitthai.  He  who  does  not  listen  to  what  he  was  told  by 
another  prophet — e.g.,  the  colleague  of  Michah ;  as  its  reads 
[L  Kings,  XX.  35,  36]  :  "And  a  certain  man  of  the  sons  of  the 
prophets  said  unto  his  companion,  by  the  word  of  the  Lord, 
Smite  me,  I  pray  thee.  But  the  man  refused  to  smite.  Then  said 
he  unto  him.  Forasmuch  as  thou  hast  not  obeyed  the  voice  of 
the  Lord  ..."  And  a  prophet  who  acted  against  that  wherein 
he  himself  was  instructed  by  Heaven — e.g.,  Edah  the  prophet,  of 
whom  it  is  written  [ibid.  xiii.  9]  :  "  For  so  was  it  charged  me  by 
the  word  of  the  Lord  "  ;  and  [ibid.,  ibid.  18]  :  "And  he  said  unto 
him,  I  also  am  a  prophet  like  thee."  And  farther  on  it  is  written 
[19] :  "  So  he  returned  with  him,"  ending  [34]  :  "And  when  he 
was  gone,  a  lion  met  him  on  the  way  and  slew  him."  [A  disciple 
taught  in  the  presence  of  R.  Hisda :  He  who  does  not  proclaim 
the  prophecy  he  was  told  has  to  receive  stripes.  And  R.  Hisda 
said  to  him :  Should  one  who  ate  dates  from  a  sieve  receive 
stripes  ?  Who  warned  him  ?  And  Abayi  said  :  His  colleagues, 
the  prophets.  And  whence  did  they  know  this?  Said  Abayi: 
From  [Amos,  iii.  7) :  "  For  the  Lord  Eternal  will  do  nothing, 
unless  he  have  revealed  his  secret  unto  his  servants  the  prophets." 
But  perhaps  the  decree  was  changed  by  Heaven  ?  If  it  were  so, 
all  the  prophets  would  be  notified.  But  was  not  such  the  case 
with  Jonah,  who  was  not  notified  that  the  decree  was  changed? 
There  was  the  prophecy  :  Nineveh  will  be  overthrown,  which  had 
two  meanings,  to  be  destroyed,  and  also  to  be  turned  over  from  evil 
to  righteousness,  and  he  did  not  understand  the  real  meaning. 
"  Who  does  not  listen  to  another  prophet."     But  whence  is  one 


26o  THE   BABYLONIAN    TALMUD. 

aware  that  he  is  a  true  prophet,  that  he  should  be  punished  ? 
In  case  he  gives  him  a  sign.  But  was  not  Michah,  who  was 
punished  for  not  listening  to  the  prophet  (as  said  above),  although 
he  did  not  give  any  sign  ?  With  him  who  has  long  been  rec- 
ognized as  a  true  prophet  it  is  different.  For  if  the  case  were 
not  so,  how  could  Isaac  have  trusted  his  father  that  his  prophecy 
was  a  true  one,  since  such  a  commandment  was  never  before 
heard,  and  also  no  sign  was  given  by  Abraham.  And  also,  how 
could  they  rely  upon  Elijah,  who  commanded  them  to  sacrifice 
outside  of  Jerusalem,  which  was  prohibited  by  the  Scripture? 
Hence,  because  they  were  recognized  prophets,  one  must  listen 
to  them  in  any  event.* 

The  rabbis  taught,  concerning  what  was  taught  by  rabbis 
(above,  p.  151)  as  to  a  prophet  who  had  misled,  to  whom  stoning 
applies  according  to  the  rabbis,  and  choking  according  to  R. 
Simeon  :  Said  R.  Hisda  :  The  point  of  their  difference  is  in  case 
one  removed  the  whole  portion  of  the  Scripture  concerning  idol- 
atry, saying :  I  was  so  commanded  by  Heaven.  Or  even  if  he 
said :  To  perform  some  of  its  worship  and  to  abolish  the  rest. 
But  if  he  removed  a  portion  which  speaks  concerning  other  com- 
mandments, all  agree  that  choking  applies.  And  if  he  told  to 
perform  some  of  them  and  abolish  the  others,  he  is  free  according 
to  all.  R.  Hamnuna,  however,  said  :  The  point  of  their  difference 
is  if  he  removed  a  portion  of  any  commandment,  be  it  concern- 
ing idolatry  or  some  other ;  and  also  in  performing  some  worship 
of  idolatry  and  aboHshing  the  rest.  As  it  reads :  "  From  the 
way  " — which  means  even  a  part  of  it.  But  if  he  prophesied  as 
to  performing  some  of  the  commandments  and  abolishing  the 
others,  all  agree  that  he  is  free. 

The  fabbis  taught :  If  one  commands  by  prophecy  to  remove 
a  commandment  from  the  Scripture,  he  is  guilty  ;  but  if  to  abolish 
some  of  it,  and  perform  the  remainder,  R.  Simeon  frees  him. 
However,  concerning  idolatry,  even  if  he  commands  **  To-day 
worship,"  and  on  the  morrow  to  abolish  it,  all  agree  that  he  is 
guilty.  Hence  it  contradicts  the  explanations  of  both  R.  Hisda 
and  R.  Hamnuna  ?  Abayi,  who  holds  with  R.  Hisda,  explained 
the  Boraitha  just  cited :  According  to  his  theory — viz.,  if  one 
commands  by  prophecy  to  remove  a  commandment  from  the 
Scripture — all  agree  that  he  is  to  be  choked.  *'  As  to  performing 
some,"  etc.,  R.  Simeon  makes  him  free,  and  the  same  do  the 

*  Here  are  also  some  Haggadas,  which  we  transfer  to  the  Haggadic  chapter. 


TRACT   SANHEDRIN   (SUPREME   COUNCIL).         261 

rabbis.  But  concerning  idolatry,  even  if  he  said  :  "  To-day  wor- 
ship," and  on  the  morrow  to  aboHsh,  he  is  subject  to  a  capital 
punishment — according  to  the  rabbis  by  stoning,  and  according 
to  R.  Simeon  by  choking.  Rabha,  however,  who  holds  with  R. 
Hamnuna,  explains  according  to  his  theory  thus  :  He  who  com- 
mands by  prophecy  to  remove,  etc.,  either  concerning  idolatry 
or  some  other  commandment,  is  subject  to  a  capital  punishment 
— each  of  the  masters  according  to  his  opinion.  "  As  to  perform- 
ing some,"  etc.,  R.  Simeon  makes  him  free,  and  so  also  do  the 
rabbis.  Concerning  idolatry,  however,  even  if  he  says :  "To-day," 
etc.,  he  is  guilty  accordingly — each  of  the  masters  according  to 
his  opinion. 

R.  Abuhu  in  the  name  of  R.  Johanan  said  :  In  every  case  men- 
tioned in  the  Torah,  if  a  true  prophet  commands  you  to  trans- 
gress, you  may  listen,  except  as  to  idolatry,  when  you  must  not 
listen,  even  if  he  were  to  stop  the  sun  for  you,  as  was  done  by 
Joshua. 

R.  Jose  the  Galilean  said  :  "  There  is  a  Boraitha :  The  Torah 
foreshadowed  the  final  mind  of  idolatry  and  therefore  gave  force 
to  it,  for  the  purpose  that  one  should  not  Hsten  to  him  who 
commands  to  commit  it,  even  if  he  were  to  stop  the  sun  for  him 
in  the  middle  of  the  sky.  Said  R.  Aqiba :  God  forbid  that  the 
sun  should  be  stopped  for  them  who  are  acting  against  His  will. 
But  it  means  even,  e.g.,  Hananiah  b.  Azzur,  who  was  a  true 
prophet  when  he  began  to  prophesy,  and  became  a  false  one  only 
afterwards. 

"  Collusive  witnesses  of  the  married  daughter  of  a  priest,''  etc. 
Whence  is  this  deduced  ?  Said  Abhah  b.  R.  Ika :  From  the 
following  Boraitha :  R.  Jose  said :  Why  is  it  written :  "  Then 
shall  ye  do  unto  him  .  .  .  unto  his  brother."  (Would  it 
not  be  sufficient  if  it  should  read:  "As  he  purposed  to  do  "  ?) 
Because  all  who  are  to  be  put  to  death  biblically,  their  collusive 
witnesses  and  their  abusers  are  punished  with  the  same,  except 
in  the  case  of  the  married  daughter  of  a  priest,  where  she  is  to 
be  burned,  but  not  her  abuser,  who  is  to  be  choked.  However, 
concerning  her  collusive  witnesses,  it  would  not  be  known 
whether  they  were  to  be  equalized  to  him  or  to  her  ?  Therefore 
the  expression,  "  unto  his  brother,"  which  means,  not  unto  his 
sister. 

END   OF   TRACT   SANHEDRIN,    PART  I.    (HALAKHA), 
AND    OF   VOL,    VII.  (XV.).