Babylonian Talmud: Tractate Sanhedrin

Folio 34a

What is R. Jose b. R. Judah's reason?¹  — Scripture says: But one witness shall not testify against any person [that he die]:²  hence, only 'so that he die' may he not testify, but he may testify for acquittal. And the Rabbis?³  — Resh Lakish answered: Their reason is that the witness seems personally concerned in his testimony.⁴  But how do our Rabbis interpret, so that he die?⁵  — They apply it to one of the disciples,⁶  as it has been taught: Whence do we learn that if one of the witnesses says, I have a statement to make in his favour, that he is not listened to? — From the verse, But one witness shall not testify.⁷  And whence do we know that if one of the disciples says, I can argue a point to his disadvantage, that he is not listened to? From the verse, One⁸  shall not testify against any person that he die.⁹

IN CAPITAL CHARGES, ONE WHO ARGUED etc. Rab said: They taught this only of the period of the deliberations,¹⁰  but at the time of pronouncement of the verdict,¹¹  one who has argued for acquittal may turn and argue for condemnation. An objection is raised:¹²  On the following day, they rise early and assemble. He who was for acquittal declares, I was in favour of acquittal and I stand by my opinion. He who was for condemnation says, I was in favour of condemnation and I stand by my opinion. He who was in favour of condemnation may argue in favour of acquittal. But he who was in favour of acquittal may not retract and argue in favour of conviction. Now surely, on the 'the following day' the decision is to be promulgated!¹³  — But on thy view, are there no deliberations on the 'the following day'? Therefore the reference of the Mishnah is merely to the period of the deliberations.

Come and hear! They debate the case amongst themselves, until one of those who are for conviction agrees with those who are for acquittal.¹⁴  Now if that is so,¹⁵  then he [the Tanna] should have taught the reverse too! — But the Tanna fosters the possibilities of acquittal, not those of condemnation.¹⁶

Come and hear! R. Jose b. Hanina said: If one of the disciples pronounced for acquittal and then died, he is regarded [when the vote is taken] as if he were alive and [standing] in his place.¹⁷  But why not assume, had he been alive, he might have retracted?¹⁸  — Because in fact he did not retract! But did they not send [a message] from 'there' [Palestine], that the words of R. Jose b. Hanina preclude the words of our Master?¹⁹  The true version was, 'Do not preclude [the words of our Master]'.

Come and hear! Two judges' clerks stand before them [the judges], one on the right and one on the left, and indite the arguments of those who would acquit, and those who would convict.²⁰  Now, as for the arguments for conviction. It is well [that they be recorded], for on the following day another argument²¹  may be discovered, which necessitates postponement of judgment over night.²²  But why [record] the grounds of the defenders; surely so that should they discover different arguments for conviction, they may not be heeded?²³  — No, it is lest two judges draw a single argument from two Scriptural verses, as R. Assi asked R. Johanan: What if two [judges] derive the same argument from two verses? — He answered: They are only counted as one.²⁴  Whence do we know this? — Abaye answered: For Scripture saith, God hath spoken once, twice have I heard this, that strength belongeth unto God.²⁵  One Biblical verse may convey several teachings, but a single teaching cannot be deduced from different Scriptural verses. In R. Ishmael's School it was taught: And like in hammer that breaketh the rock in pieces:²⁶  i.e., just as [the rock] is split into many splinters,²⁷  so also may one Biblical verse convey many teachings.

What is an example of: 'One argument drawn from two Biblical verses'? — R. Zebid answered: As we learnt: The Altar sanctifies²⁸  all that is 'fit' for it.²⁹  R. Joshua said: [That means,] Anything 'fit' for the fire of the Altar',³⁰  once it ascended [thereon], may not descend,³¹  for it is written: The burnt offering, it is that which goeth up upon its fire-wood, upon the altar:³²  Just as the burnt offering which is 'fit' for the altar-fire, once it ascended, may not descend,³³  so everything which is 'fit' for the altar-fire, once it ascends, may not descend. R. Gamaliel said: Anything 'fit' for the altar,³⁴  once it has ascended, may not descend, for it is written: The burnt offering, it is that which goeth up upon its fire-wood upon the altar: Just as the burnt offering which is 'fit' for the altar, once it has ascended, may not descend, so everything else which is 'fit' for the altar, once it has ascended, may not descend. What do both include?³⁵  — Invalidated objects.³⁶  One Master [sc. R. Joshua] deduces the law from the word 'fire-wood', and the other from 'altar'.³⁷  But there, they do actually differ! For the second clause [of that Mishnah] states: R. Gamaliel and R. Joshua differ only with reference to the Sacrificial blood and libations: according to R. Gamaliel. these may not descend; whereas in R. Joshua's view, they do descend.³⁸  But, said R. Papa, it [the required example] is illustrated in the following Baraitha: R. Jose the Galilean said: From the verse,

1. For the view that the witnesses may change their evidence only in favour of the accused.
2. Num. XXXV, 30.
3. Why do they forbid a change of his evidence in favour of the accused?
4. Since he might have been induced to change his evidence in favour of the accused, lest he be proved a Zomem and so become subject to punishment by the law of retaliation.
5. Which seem to indicate that the testimony may not be changed only when it leads to death.
6. That he may not put forward arguments in favour of condemnation.
7. Num. XXXV, 30. I.e., change his testimony even in his favour.
8. Who is not a witness, but a disciple.
9. Ibid. But he may do so for acquittal.
10. When all endeavours must be used to strengthen the case for acquittal.
11. When all arguments in favour of acquittal have been exhausted.
12. Cf. infra 40a.
13. Then why not retract in favour of conviction.
14. Infra 40a.
15. Viz., that when the decision is about to be pronounced, an opinion can be reversed even for condemnation.
16. Theoretically, however, the trend of the debate might be in the reverse direction.
17. Infra 43a.
18. In favour of conviction, when judgment is pronounced.
19. Sc. Rab. Therefore his ruling not to consider an eventual change of opinion is due to the fact that he holds that at the promulgation of the decision one cannot retract.
20. Infra 36b.
21. For condemnation.
22. Cf. supra 17a; i.e., so as to give the judges a chance to alter their opinion. Hence the necessity of recording their statements in order to shew that they have changed their grounds for conviction, so necessitating a further postponement.
23. Unless they erred in a law accepted even by the Sadducees. Hence the necessity of recording their grounds for acquittal in order to be able to discover the nature of the error. This proves that an opinion for conviction may not be reversed even at the time of the promulgation of the decision.
24. Since no two verses are intended to teach one and the same thing, one of the judges must have erred.
25. Ps. LXII, 12.
26. Jer. XXIII, 29.
27. The test contains a grammatical difficulty. Literally translated, it is, Just as the hammer is split etc.; whereas for the present translation, the text must read [H] instead of [H], and some commentators emend the text accordingly. R. Tam, however, on the basis of Ekah R. IV, 7, retains the present text and its literal translation, as above, and explains, Just as the hammer, when it smites an extraordinary hard object, may itself be split, — so may the Biblical verse, when subjected to the scrutiny of a very keen intellect, split up into different meanings.
28. I.e., that nothing that was laid upon it may be taken back.
29. I.e., anything which has come into contact or relationship with the altar, after having been appointed for it. Even if it became subsequently invalid for its original purpose, for any reason, e.g., in the case of a sacrifice, if the officiating priest slaughtered it with a forbidden intention, it nevertheless retained its sanctity. Now, this statement lays down the general principle with which all are in agreement, the further definition and application of which form the subject of dispute amongst various teachers whose views the Mishnah proceeds to state.
30. I.e., only that which could have served that purpose. e.g., the flesh of a burnt offering. If, however, the blood of a sacrifice became invalid, since that is not intended to feed the fires of the altar, it does not retain its sanctity.
31. I.e., may not be taken back, for the altar has given it a sacred character.
32. Lev. VI, 2.
33. Derived from … upon the altar all night unto the morning. (ibid).
34. I.e., not only fit for the fires of the altar, but used in any service of the altar. Hence, in his opinion, the law applied to blood and libations too, since these were respectively sprinkled and poured upon the altar.
35. Among the things which may not be taken back when once laid upon the altar.
36. As explained in note 2.
37. Now, at this stage it is assumed that since both deduce the same general principle from two different verses, there is no real disagreement between them. Thus this affords an illustration of 'one law drawn from two different verses.
38. I.e.. they lose their sanctity. For the explanation of this, v. p. 215. n. 3. Hence, this is not a true example of one law devised from two texts. (Note: A single word is also referred to as a 'verse' or 'text'.)

CIVIL SUITS ARE TRIED BY DAY etc. (Mnemonic: Judgment, Answering, Inclining.)

Whence is this derived? — R. Hiyya b. Papa said: From the verse, And let them judge the people at all times.²⁰  If so, even the beginning of the trial may [take place at night]! — It is as Raba explained. For Raba opposed [two verses]: It is written, And let them judge the people at all times;²¹  but elsewhere it is said, And in the day that he causeth his sons to inherit.²²  How [can these be reconciled]? — The day is for the beginning of the trial, the night is for the conclusion of the trial.²³

Our Mishnah²⁴  does not agree with R. Meir. For it has been taught. R. Meir used to say: What is meant by the verse, According to their word shall every controversy and every leprosy be?²⁵  Now, what connection have controversies with leprosies? — But controversies are assimilated to leprosies: just as leprosies [must be examined] by day, since it is written, And in the day when [raw flesh] appeareth in him,²⁶  so controversies [must be tried] by day; and just as leprosies cannot [be examined] by the blind,²⁷  for it is written, Wherever the priest looketh,²⁸  so controversies too may not be tried by the blind.²⁹  And leprosies are further compared to controversies: Just as the latter may not be tried by relatives, so the former may not be examined by relatives. Now, if so,³⁰  [one might argue,] that just as controversies must be tried by three, so must leprosies too [be examined] by three; moreover, it follows a minori,' [if questions affecting] one's wealth are [to be tried] by three, how much more so [when they concern] one's body! Therefore Scripture teaches, When he shall be brought unto Aaron the priest or unto one of his sons the priests,'³¹  thus thou learnest that a single priest may examine leprosies.

A blind man in the neighbourhood of R. Johanan used to try suits, and R. Johanan raised no objection. But how could he do so?³²  Did not R. Johanan himself say, The halachah is as [every] anonymous Mishnah.³³  and we learnt: He who is qualified to judge is qualified to testify; some, however, are qualified to testify but not to judge. Whereon R. Johanan said: This is to admit [as witness] one who is blind of one eye?³⁴  — R. Johanan found another anonymous Mishnah,³⁵  viz., CIVIL SUITS ARE TRIED BY DAY AND CONCLUDED BY NIGHT.³⁶  But why is this anonymous Mishnah more authoritative³⁷  than the other? — Either because an anonymous Mishnah which expresses the opinion of the majority is preferable;³⁸  or alternatively, because this Mishnah is taught in the tractate relating to legal procedure.³⁹  But how does R. Meir⁴⁰  interpret the verse, And let them judge the people at all times? — Raba answered: As including even a cloudy day.⁴¹  For we learnt:⁴²  Leprosies may not be examined in the morning, in twilight, in the house, or on a cloudy day, for [then] a dull [spot] might appear bright,⁴³  at mid-day,⁴⁴  for a bright [spot] might then appear dull.⁴⁵  Now [again], according to R. Meir, what is the purpose of, And in the day that he causeth his sons to inherit?⁴⁶  — He utilises it, even as Rabbah b. Hanina recited before R. Nahman: And in the day he causeth his sons to inherit: only by day mayest thou assign estates, but not by night. Whereupon the other retorted:⁴⁷  If so, if one dies by day, his sons inherit, but should he die at night, they do not inherit! Perhaps you refer to the legal procedure in bequests.⁴⁸  For it has been taught: And it shall be unto the children of Israel a statue of judgment:⁴⁹  that invests the whole chapter with the force of judicial proceedings.⁵⁰  Thus [your dictum] will agree with that which Rab Judah said in Rab's name, viz.: If three [persons] come to visit a sick man,⁵¹  they may, according to their desire, either record [his bequest],⁵²  or render a judicial ruling.⁵³  In case of two, however, they may write it down,⁵⁴  but not render a judicial ruling.⁵⁵  Whereon R. Hisda said: This⁵⁶  holds good by day; at night, however, they may indite the bequest, but not render a judicial ruling, since they are witnesses, and a witness cannot act as judge.⁵⁷  — He [Rabbah b. Hanina] answered: Yes, I meant it so.

BUT CAPITAL CHARGES MUST BE TRIED BY DAY [AND CONCLUDED BY DAY]. Whence is this deduced? — R. Shimi b. Hiyya said: Scripture states, And hang [we — hoka'] them up unto the Lord in face of the sun.⁵⁸  Whence do we know that hoka'ah means hanging? — From the verse, And we will hang them up [we — hoka'anum] into the Lord in Gibeah of Saul, the chosen of the Lord.⁵⁹

1. Ex. XXIX, 37. I.e., once it touches the altar, it retains its sanctity, as above.
2. E.g., leaven and honey, (cf. Lev. II, 11) which are never permissible for the altar, or unconsecrated animals (i.e., hullin), which are not yet fit for the altar. — Animals had to be formally consecrated before they might be sanctified upon the altar.
3. In the following verse. Ex. XXIX, 38.
4. Even if now disqualified. Yet they must be things that are essentially fit for the altar, as explained in p. 215. n. 7; otherwise, the law does not apply to them.
5. [H] Ibid. verse 42; This shall be a continued burnt offering (R. Hananel). According to Rashi, it occurs in the same verse 38 as above. Though the word does not appear in the Masoretic text, it occurs in the Samaritan Text. On such variants, v. Heller, Samaritan Pentateuch, an adaptation of the Masoretic Text.
6. I.e., things that were never permissible upon the altar, e.g., leaven and honey; v. Lev. II, 11.
7. Thus, this Baraitha illustrates one law drawn from two Biblical verses.'
8. Amongst the objects which, though disqualified, may not be taken back when once laid upon the altar.
9. Zeb. 107a.
10. Lev. XVII, 4.
11. Apparent redundance of the expression.
12. The blood of a sacrifice outside the Temple courts, as being liable to excision (kareth).
13. Ibid. verse 8.
14. Thus it illustrates 'one law drawn derived from two Scriptural verses.'
15. Without the Temple precincts, i.e. Unwittingly, in a spell of forgetfulness, without being reminded between the two acts that they were of a forbidden character. Now, it is a principle that every forbidden act, which, if done wittingly, involves kareth, requires a sin offering if done wittingly. There is a further principle that all things whose forbidden nature is deduced from the same word, rank as a small transgression, and therefore involve only one sacrifice.
16. Who deduces the penalty of kareth for sprinkling outside the court from the same verse which prohibits slaughter.
17. That kareth for sprinkling without the Temple precincts is deduced from a different verse.
18. Deut. XII, 14.
19. Hence there is only this one verse which commands that all acts of sacrifice, which includes slaughtering and sprinkling, shall be done in the prescribed fashion. Therefore, transgression of both involves only one sacrifice
20. Ex. XVIII, 22; i.e., even at night.
21. Ibid.
22. Deut. XXI, 16. From the fact that day is stressed, the Talmud deduces that all matters in connection therewith, which principle includes disputes over the inheritance, are to be settled by day. But such disputes are part of civil suits in general, and thus this verse contradicts the preceding.
23. For, 'and they shall judge … at all times' implies the giving of the verdict, which is the essence of judgment.
24. Which rules that the decision may be issued at night.
25. Deut. XXI, 5.
26. Lev. XIII, 14.
27. [Even of one eye only. v. Neg. II, 3.]
28. Ibid. verse 12.
29. [Even by one who is blind of one eye only, since it is deduced from 'leprosies', Yad Ramah.]
30. If they are similar in so many respects.
31. Ibid. verse 2.
32. I.e., permit him to judge.
33. A Mishnah that is taught without mention of its author, or of any conflict of opinions that exists regarding it.
34. But not as judge, so coinciding with R. Meir's opinion stated above, (v. p. 218 nn. 5 and 7).
35. Which implied that a blind man is permitted to judge.
36. For there are many whose eye-sight is as dim by night as that of a blind man by day.
37. Lit., 'stronger'.
38. The Mishnah which, according to R. Johanan, treats of a blind man, expresses the view of R. Meir as expressed in the preceding Baraitha, but our Mishnah, that of the majority.
39. Whereas the other anonymous Mishnah is cited only incidentally in a tractate relating to a different subject entirely, and it stands to reason that greater care would be taken in the former to teach what is actually the halachah.
40. Who holds that disputes may only be tried by day.
41. On which, unlike the cases of leprosies, civil suits may be tried.
42. Neg. II, 2.
43. So that it might wrongfully be declared unclean. Cf. Lev. XIII, 2ff.
44. When the sun is brightest.
45. So that it might wrongfully be declared clean, Neg. II, 2.
46. Since R. Meir deduces the law that civil suits must be tried by day from the case of the examination of leprosies, the reference to 'day' here appears superfluous.
47. In B.B. 113b, this question is attributed to Abaye.
48. If made by day, a bequest has judicial authority, and does not need court authentication; by night, those who witnessed it are required to legalise it before court. (Rashi.) The Rashbam in B.B. 113b translates: 'Perhaps you refer to lawsuits concerning legacies,' i.e., that these, like any other civil suits, must take place by day.
49. Num. XXVII, 11, at the conclusion of the section dealing with laws of inheritance.
50. I.e., when a bequest is made, those who are present become ipso facto a Beth din, even against the wish of the testator's natural heirs. This is the explanation given by Tosaf. in B.B. 113b, which adds that the reference is not particularly to a bequest made on one's deathbed, but even to one made in full health, save that it must be accompanied by a formal kinyan (q.v.). Rashi's interpretation here is on the same lines, but he appears to refer it to a sickbed bequest.
51. And hear him assign his estate to his heirs.
52. Merely as witnesses. That document is afterwards produced by the heirs in court and there given its necessary authority.
53. Since they are three they can constitute themselves into a court and have legal authority to execute the Will.
54. In the form of a witnessed document.
55. Since two do not make a properly constituted Court.
56. Ruling with reference to three.
57. I.e., when they hear a bequest at night, they can obviously do so only as witnesses, since a court cannot function at night, consequently, they cannot subsequently constitute themselves a court, for they already have the status of witnesses.
58. [H], Num. XXV, 4; i.e., in the day time.
59. [H] II Sam. XXI, 6.