Babylonian Talmud: Tractate Sanhedrin

Folio 81a

MISHNAH. HE WHO INCURS TWO DEATH PENALTIES IMPOSED BY BETH DIN IS EXECUTED BY THE SEVERER. IF HE COMMITTED ONE SIN FOR WHICH A TWOFOLD DEATH PENALTY IS INCURRED, HE IS EXECUTED BY THE SEVERER. R. JOSE SAID: HE IS JUDGED ACCORDING TO THE FIRST INTERDICT WHICH LAY UPON HIM.⁴

GEMARA. Is it not obvious [that he is executed by the severer]: shall he then profit [by his additional crime]? Raba answered: The circumstances are these: First he committed the lighter offence, for which he was sentenced; then the more serious one. I might think, since he was already under sentence for the lighter offence, he is as a dead man [and cannot be further sentenced] — We are therefore taught otherwise.

The father⁵  of R. Joseph b. Hama inquired of Rabbah b. Nathan: Whence do we know this law stated by the Rabbis viz., ONE WHO INCURS TWO DEATH PENALTIES PASSED BY BETH DIN IS EXECUTED BY THE SEVERER? — [He answered:] From the verse, If he [sc. the righteous man] beget a son that is a robber, a shedder of blood, … [who] hath eaten upon the mountains, and defiled his neighbour's wife.⁶  Now, 'If he beget a son that is a robber, a shedder of blood, — this [murder] is punished by decapitation; 'and defiled his neighbour's wife', — this is adultery, punished by strangulation; 'and hath lifted up his eyes to the idols',⁷  refers to idolatry, for which stoning is incurred. And it is written, He shall surely die, his blood shall be upon him,⁸  which indicates stoning.⁹  R. Nahman b. Isaac objected: May it not refer to a series of offences all punishable by stoning? Thus: 'If he beget a sort a robber, a shedder of blood', refers to a wayward and rebellious son,¹⁰  who is stoned; 'and defiled his neighbour's wife', to a betrothed maiden, whose ravisher too is stoned; 'and hath lifted up his eyes to the idols', to idolatry, for which stoning is likewise incurred? — If so, what does Ezekiel teach us?¹¹  But perhaps he was merely revising the Torah?¹²  — Then he should have revised it [all] just as Moses had revised it.¹³

R. Aha b. Hanina gave the following exposition: What is meant by, [But if a man be just and do that which is lawful and right, etc.] and hath not eaten upon the mountains?¹⁴  I.e., he did not eat through his forbears' merit;¹⁵  neither hath he lifted up his eyes to the idols of the house of Israel, that he did not walk with haughty mien; neither hath defiled his neighbor's wife, indicating that he did not [competitively] enter his neighbour's profession; neither hath come near to a menstruous woman, meaning that he did not benefit from the charity fund.¹⁶  And it is written, He is just, he shall surely live.¹⁷  When R. Gamaliel read this verse he wept, saying, 'Only he who does all these things shall live, but not merely one of them!' Thereupon R. Akiba said to him, 'If so, Defile not yourselves in all these things.¹⁸  is the prohibition against all [combined] only, but not against one?' [Surely not!] But it means, in one of these things; so here too, for doing one of these things [shall he live].

IF HE COMMITTED ONE SIN FOR WHICH A TWOFOLD DEATH PENALTY IS INCURRED, etc.

It has been taught: When did R. Jose rule, HE IS JUDGED ACCORDING TO THE FIRST INTERDICT WHICH LAY UPON HIM? E.g., if a woman was first interdicted as a mother-in-law¹⁹  and then became a married women, he is judged [for incest with her] as for his mother-in-law only. If she was first forbidden to him as a married woman and then became his mother-in-law, he is punished for a married woman.²⁰  R. Adda b. Ahaba said to Raba: 'If she was first his mother-in-law and then became a married woman, he is judged as for his mother-in-law only'; but should he also not be punished for the interdict attaching to her as a married woman? For R. Abbahu said: R. Jose agrees in regard to a more extensive prohibition [that it becomes operative where a prohibition already exists].²¹

1. I.e., explicitly telling him that he was wrong.
2. I.e., he states the Biblical law.
3. But not directly state the law, leaving it for his father to draw the inference. This does not shame him.
4. This is explained below.
5. Var. lec., 'brother'.
6. Ezek. XVIII, 10f.
7. Ibid 12.
8. Ibid. 13.
9. 'His blood shall be upon him' always means stoning, v. p. 357 n. 7. Thus we see that the severest penalty is imposed; and it must be under the circumstances posited by Raba, for otherwise the verse is unnecessary.
10. So called, because he ultimately becomes a murderer, v. supra 72a.
11. For then it is obvious.
12. His coreligionists having forgotten it; but not intending to teach any new law.
13. [In Deuteronomy.]
14. Ibid. 6.
15. His own merit being sufficient that God should sustain him. 'Mountains' is interpreted as metaphorically referring to one's ancestors; cf. Micah VI, 2, which may be so translated.
16. It being wrong to do so unless one is absolutely compelled.
17. Ibid. 9.
18. Lev. XVIII, 24.
19. I.e., if one marries a widow's daughter, so that the widow is forbidden to him only as a mother-in-law.
20. Because R. Jose maintains that a second prohibition cannot become operative where one is already in existence. Adultery with a married woman is punished by strangling; incest with one's mother-in-law by burning.
21. As his mother-in-law she was forbidden to him only; on remarriage, the prohibition was extended to all men. Since the second prohibition is thus wider in scope than the first, it is operative even where the first already exists.

MISHNAH. HE WHO WAS TWICE FLAGELLATED [FOR TWO TRANSGRESSIONS, AND THEN SINNED AGAIN,] IS PLACED BY BETH DIN IN A CELL AND FED WITH BARLEY BREAD, UNTIL HIS STOMACH BURSTS.

GEMARA. Because he has been twice flagellated Beth din places him in a cell?²  — R. Jeremiah answered in the name of Resh Lakish: The reference is to flagellation for an offence punishable by extinction,³  so that he is already liable to death [at the hand of God], but the time of his death has not yet come: since, however, he abandoned himself [to sin, by transgressing a third time], we hasten his death. R. Jacob said to R. Jeremiah b. Tahlifa: 'Come, I will interpret it to you. This treats of flagellation for one sin involving extinction [which was twice repeated]: but [if he committed]two or three different sins each involving extinction, It may merely be his desire to experience sin, and not a complete abandonment thereto.'⁴

ONE WHO WAS TWICE FLAGELLATED.

Twice, though not thrice; shall we say that the Mishnah does not agree with R. Simeon b. Gamaliel? For if it did, does he not maintain, There is no presumption until a thing has happened three times?⁵  — Rabina said: It may agree even with R. Simeon b. Gamaliel: The Mishnah is of the opinion that transgressions afford a basis for presumption.⁶

An objection was raised: If one committed an offence involving flagellation, the first and second time he is flagellated; on the third occasion he is placed in a cell. Abba Saul said: Even on the third occasion he is flagellated; but on the fourth, he is placed in a cell.⁷  Now presumably, both agree that flagellation affords a basis for presumption, and they differ on the lines of Rabbi and R. Simeon b. Gamaliel?⁸  — No. Both agree with R. Simeon b. Gamaliel, but they differ on this question: One Master⁹  holds that transgression affords a basis for presumption, the other Master,¹⁰  that only flagellation affords it. But what of the following that has been taught, viz.: If he [the transgressor] was warned [of his liability to flagellation], but remained silent, or warned and nodded his head, — the first and second time he is to be warned, but on the third occasion he is placed in a cell. Abba Saul said: The third time too he is warned, but on the fourth, he is placed in a cell.¹¹  Now there he is not flagellated:¹²  wherein then do they differ? — Rabina said: They differ as to whether one must be warned of the cell.¹³

And what was the form of the cell? — Rab Judah said: A chamber of his [the transgressor's] full height. And where is it alluded to?¹⁴  — Resh Lakish quoted: Evil shall slay the wicked.¹⁵  Resh Lakish also said: What is meant by, For man also knoweth not his time, as the fishes that are taken in an evil trap;¹⁶  what is 'an evil trap'? — Resh Lakish said: A hook.¹⁷

MISHNAH. ONE WHO COMMITS MURDER WITHOUT WITNESSES IS PLACED IN A CELL AND [FORCIBLY] FED WITH BREAD OF ADVERSITY AND WATER OF AFFLICTION'.¹⁸

GEMARA. How do we know [that he committed murder]? — Rab said: On a 'disjoined' evidence.¹⁹  Samuel said: Without a warning.²⁰  R. Hisda said in Abimi's name: Through witnesses who were disproved as to the minor circumstances [of the crime], but not on the vital points.²¹  As we learned: It once happened that Ben Zakkai examined [the witnesses] as to the stalks of the figs.²²

AND FED 'BREAD OF ADVERSITY AND WATER OF AFFLICTION'. Why does this Mishnah teach, AND FED WITH BREAD OF ADVERSITY AND WATER OF AFFLICTION', whilst the former teaches, HE IS PLACED BY BETH DIN IN A CELL AND FED WITH BARLEY BREAD UNTIL HIS STOMACH BURSTS? — R. Shesheth answered: In both cases he is fed with 'bread of adversity and water of affliction' for his intestines to shrink [thus blocking the passage], and then he is fed with barley bread until his stomach bursts.

MISHNAH. IF ONE STEALS THE KISWAH,²³  OR CURSES BY ENCHANTMENT, OR COHABITS WITH A HEATHEN [LIT. SYRIAN] WOMAN, HE IS PUNISHED BY ZEALOTS.²⁴  IF A PRIEST PERFORMED THE TEMPLE SERVICE WHILST UNCLEAN, HIS BROTHER PRIESTS DO NOT CHARGE HIM THEREWITH AT BETH DIN, BUT THE YOUNG PRIESTS TAKE HIM OUT OF THE TEMPLE COURT AND SPLIT HIS SKULL WITH CLUBS. A LAYMAN WHO PERFORMED THE SERVICE IN THE TEMPLE, R. AKIBA SAID: HE IS STRANGLED; THE SAGES SAY: [HIS DEATH IS] AT THE HANDS OF HEAVEN.

GEMARA. What is kiswah? — Rab Judah answered: The service vessels [of the Temple]; and thus it is said, And the vessels [Kesoth]²⁵  of libation.²⁶  And where is this alluded to?²⁷  That they come not to see how the holy things are stolen,²⁸  lest they [the purloiners] die.²⁹

OR CURSES BY ENCHANTMENT. R. Joseph learned, [He curses thus:] May the charm [the idol] slay its enchanter.³⁰  The Rabbis, others say, Rabbah b. Mari, say: [He curses:] May the charm slay him [his enemy], his Master and his Provider, etc.³¹

OR COHABITS WITH A HEATHEN WOMAN.

R. Kahana propounded a problem to Rab:

1. Obviously not! Therefore under no circumstances can one prohibition take legal hold where another exists, if death is the penalty. R. Jose's admission refers only to unwitting transgression, and is in connection with sacrifices.
2. Surely that is inequitable!
3. But the witnesses had warned him that he would be flagellated, — a lesser penalty.
4. So that there is hope for his reformation; consequently we do not hasten his death.
5. This is in connection with widowhood: only if a woman has been thrice widowed is there a presumption that it is her destiny to cause her husbands' death, and hence she may not remarry. Rabbi maintains that this presumption may be made even if she has only been twice widowed.
6. Not flagellation. Therefore, if he transgressed thrice, though only twice flagellated, there is a presumption that he is incorrigible.
7. Tosef. Sanh. XII.
8. The first Tanna agreeing with Rabbi that twice affords presumption, Abba Saul with R. Simeon b. Gamaliel. But since the first Tanna is identical with the Tanna of our Mishnah, it follows that it cannot agree with R. Simeon b. Gamaliel. This refutes Rabina.
9. The first Tanna.
10. Abba Saul.
11. Tosef. XII. When a warning is given, the offender must explicitly accept it, (cf. supra pp. 494-5), otherwise he cannot be punished. Nevertheless, since he was warned, and shewed by his silence or his nodding that he accepted the warning, there is a presumption that he is a confirmed sinner, and hence the law of Mishnah applies to him.
12. So that there is no flagellation to afford a basis for presumption.
13. Both agree that he becomes a confirmed sinner when he has thrice transgressed. The first Tanna maintains that once we regard him as such, he is placed in a cell without further ado; but Abba Saul is of the opinion that this too must be preceded by a formal warning. Hence, after sinning three times, it is necessary that he shall sin a fourth time, that he may be warned of the consequences.
14. It is assumed that the law is traditional, going back to Moses; nevertheless, an allusion is sought in the Bible.
15. Ps. XXXIV, 22.
16. Ecc. IX, 12.
17. This, though small, captures even large fish; thus it is more subtile and dangerous than a net. Presumably also it is more painful.
18. Isa. XXX, 20.
19. I.e., the murder was witnessed by two persons who were not standing together. In that case, he cannot be executed; hence he is imprisoned. cf. Mak. 6b.
20. I.e., there were two witnesses, but invalid to impose the usual death sentence, because they did not warn him.
21. By 'vital points' ([H]) time and place of the crime are meant; by 'minor circumstances' (bedikoth [H]) the weapon, clothes worn by the victim or the murderer, etc. Since the vital evidence has not been disproved, the accused is adjudged a murderer; as, however, the witnesses were disproved on minor details, he cannot be executed, and is therefore placed in a cell.
22. The witnesses having deposed that the murder took place under a fig tree. Ben Zakkai examined them on the nature of the stalks, Whether thick or thin, etc. v. supra 40a ff.
23. V. Gemara.
24. I.e., pious men, jealous for the honour of Judaism, may punish him if they apprehend him in the act; but if they did not, they cannot subsequently charge him therewith at Beth din (Rashi).
25. [H]
26. Num. IV, 7.
27. That a zealot who sees the theft must punish, i.e., slay him.
28. [H] lit., 'swallowed up'.
29. Ibid. 20. Nevertheless, this not being the true meaning of the verse, q.v., it is regarded merely as a hint, the actual law being traditional. [The allusion is probably to the vessel employed for water libation, a rite opposed by the Sadducees. The purloiner would accordingly be a member of that sect, v. Krauss, Sanh.-Mak. p. 260.]
30. Referring to God. The meaning of the passage is uncertain. H. Danby, Tractate Sanhedrin, a.l., suggests that [H] may be an abbreviation of some transliterated unorthodox divine name, e.g., [G], or a disguised form of the Tetragrammaton. The offence then will consist in blaspheming the Divine Name under a pseudonym (Sanh. VII, 5). Levy, s.v. oxe translates: May the charmer (= idol) slay its charmer (= God). But the Munich MS. reads [H] = what is like him (cf. [H] supra 56a). Jastrow renders: 'May the carver (i.e., God, invoked as 'carver' instead of creator ex nihilo) strike his carving!'
31. The last two refer to God. This is translated by Levy (loc. cit.): The charmer smite him, his possessor, and Him who gives him possession. The J. a. l. reads: [H] e.g., as the Nabateans curse, viz., Cursed be thou, thy possessor, and Him who gives thee possession.