Babylonian Talmud: Tractate Sotah

Folio 45a

Our Mishnah is not in agreement with R. Eliezer b. Jacob; for it has been taught: R. Eliezer b. Jacob says: 'Thy elders' i.e., the Sanhedrin; 'thy judges' i.e., the king and High priest-the king, for it is written: The king by judgment establisheth the land;⁷  and the High priest, for it is written: And thou shalt come unto the priests the Levites, and unto the judge that shall be etc.⁸  The question was asked: Is R. Eliezer b. Jacob only at variance [in defining 'judges'] as the king and High priest, but as regards [the number of members of] the Sanhedrin does he agree with R. Judah or R. Simeon; or perhaps he is also at variance on that matter too and requires the whole of the Sanhedrin? — R. Joseph said: Come and hear: If they⁹  found a rebellious elder¹⁰  in Beth Pagi,¹¹  and he rebelled against them,¹²  it is possible to think that his act of rebellion is punishable; therefore there is a text to State, Then shalt thou arise and get thee up unto the place.¹³  This teaches that the 'place' determines [whether the act of rebellion is punishable].

Now how many of them had gone forth [from the Great Sanhedrin to Beth Pagi]? If I say that only a part of them had gone forth, perhaps they who remain behind are of the same opinion as the accused!¹⁴  It is therefore evident that all must go forth. And for what purpose? If for a secular object, was it possible for them all to go? For behold it is written: Thy navel is like a round goblet, wherein no mingled wine is wanting,¹⁵  so that should a member have need to go out [from the hall where the Sanhedrin was in session], he may only do so if twenty-three [of his colleagues] remain, corresponding to the number of a minor Sanhedrin, otherwise he may not leave! Obviously, then, [they had gone forth] for a religious object. For what object? Must it not be to measure in connection with the heifer, according to the opinion of R. Eliezer b. Jacob?¹⁶  — Abaye said to [R. Joseph], No; [they may all go forth for such a purpose as] to add to the boundaries of the city [of Jerusalem] or the Temple-courts; as we have learnt: We do not add to the boundaries of the city [of Jerusalem] or the Temple-courts except by a Court of seventy-one.¹⁷  There is a teaching in agreement with R. Joseph: If they¹⁸  met in Beth Pagi, and [an elder] rebelled against them; e.g., they went forth to carry out a measurement in connection with the heifer, or to add to the boundaries of the city [of Jerusalem] or the Temple-courts,¹⁹  it is possible to think that his act of rebellion is punishable; therefore there is a text to State, Then shalt thou arise and get thee up [etc.].¹³  This teaches that the 'place' determines [whether the act of rebellion is punishable].

IF [THE CORPSE] WAS FOUND HIDDEN IN A HEAP OF STONES, OR HANGING ON A TREE. Is this to say that our Mishnah agrees with R. Judah and not the Rabbis? For it has been taught: And hast forgot a sheaf in the field²⁰  — this excludes [a sheaf] which was hidden; such is the statement of R. Judah, but the Sages declare that 'in the field' is to include a hidden sheaf!²¹  — Rab said: You may even maintain that it agrees with the Rabbis since each case is to be explained in the light of its context. [In connection with the corpse] it is written: 'If one be found slain,' i.e., wherever it be found; 'in the earth', i.e., to the exclusion of one which is hidden. The other case [of the sheaf] is to be explained in the light of the context; for it is written: 'When thou reapest thine harvest in thy field and hast forgot a sheaf. There is an analogy between the forgotten sheaf and the harvesting: as the harvesting is visible to all so the forgotten sheaf must be visible to all;²²  and the fact that the All-Merciful wrote 'in the field' is to include a hidden sheaf. Then let R. Judah likewise draw an analogy between the forgotten sheaf and the harvesting!²³  — He actually does so; but [he argues], What is the purpose of 'in the field'? It is required to include standing-corn which is forgotten.²⁴  From where, then, do the Rabbis derive the regulation of standing-corn which is forgotten? — They derive it from, When thou reapest thine harvest in thy field [and hast forgot].²⁵  And [how does] R. Judah [explain this phrase]? — He requires it for the teaching of R. Abbahu in the name of R. Eleazar; for R. Abbahu said in the name of R. Eleazar: It excludes the case where sheaves were carried [by the wind] into his neighbours' field.²⁶  And [from where] do the Rabbis [derive this regulation]? — From the fact that Scripture has 'thy field' and not merely 'the field'. And [what of] R. Judah? — He draws no inference from 'thy field' as distinct from 'the field'.

R. Jeremiah asked: How is it if sheaves were carried²⁷  into his own field? Is the air-space above a field identical with the field or not? — R. Kahana said to R. Papi another version is, R. Kahana said to R. Zebid, The problem is to be solved from the teaching of R. Abbahu who said in the name of R. Eleazar, 'It excludes the case where sheaves were carried [by the wind] into his neighbour's field,' implying, does it not, that only [when they are carried into] his neighbour's field they are [excluded], but [if the wind drops them] into his own field they are not!²⁸  But according to your reasoning, [it would follow that] if the sheaves were carried into his neighbour's field [and alighted upon a stone, etc.,] they are excluded, but should they lie [upon the ground] they are not;²⁹  surely we require [the sheaves to be] 'in thy field', but they are not there! Rather must they [argue thus:³⁰  'It excludes when the sheaves were] in his neighbour's field' even if actually lying upon the ground; and the expression 'carried' is only employed because this could have happened only if they were 'carried' [by the force of the wind].

Come and hear: If he laid hold of a sheaf to convey it into the city, placed it on top of another sheaf belonging to his neighbour and forgot it, the lower is considered to be a forgotten sheaf but not the upper. R. Simeon b. Judah says in the name of R. Simeon: Neither is a forgotten sheaf, the lower because it is hidden and the upper because it is suspended.³¹  Hence they only differ as regards the lower, but with respect to the upper they all agree that it is not a hidden sheaf!³²  — It is different in this circumstance, because having taken hold of it he has the right to it. If that is so,³³  why use the argument 'placed it on top of another sheaf belonging to his neighbour'? It would have been the same if he had laid it upon the field [of his neighbour]! — That is so; but he used the illustration of 'on top of another sheaf belonging to his neighbour', because of the instance of the lower sheaf [about which there was a difference of opinion]. Why, then, should he use the phrase 'because it is suspended'!³⁴  — Read: because it is like something suspended.³⁵

Abaye said: Behold I am like Ben Azzai in the streets of Tiberias.³⁶  So one of the Rabbis asked Abaye, If there were two corpses, one on top of the other,³⁷  from which is the measurement taken? [Do we argue that with] two things of the same kind [the lower] is regarded as hidden and with two things of the same kind [the upper] is not regarded as suspended, so that he takes the measurement from the upper; or perhaps with two things of the same kind [the upper] is regarded as suspended and with two things of the same kind [the lower] is not regarded as hidden, so that he takes the measurement from the lower; or perhaps with two things of the same kind [the lower] is regarded as hidden and with two things of the same kind [the upper] is regarded as suspended, so that he takes measurement neither from the lower nor the upper! — He replied to him,

1. I.e., he does not expound the analogy.
2. [This passage, which is bracketed in cur. edd., is rightly omitted in some texts.]
3. Deut. XXI, 2.
4. The former obtained the number five from 'thy elders and thy judges' and now four more are to be added.
5. And are not to be used to add to the number of elders.
6. So that there is no need for measuring.
7. Prov. XXIX, 4.
8. Deut. XVII, 9. 'And' is understood as 'evenð; therefore the priests acted as judges; and since one in particular is specified in 'the judge' it must be the High Priest.
9. The number of the Great Sanhedrin.
10. One who refused to abide by the decision of the Sanhedrin, Deut. XVII, 8.
11. A place within the walls of Jerusalem. Origen mentions that it was a village inhabited by priests.
12. Against the decision of the local Sanhedrin to whom a disputed point of law was submitted.
13. Deut. XVII, 8, i.e., the Temple mount, the locale of the Great Sanhedrin.
14. How then could the rebellious elder be condemned?
15. Cant. VII, 3, E.V. 2. This verse is applied to the Sanhedrin, called 'navel', because it sat in a place which was considered to be the centre of the world. 'Mingled wine' is defined (Shab. 77a) as diluted with two-thirds of water. Hence one third of the Sanhedrin must at least be present at a session.
16. Who, ex hypothesi, requires the presence of the entire Sanhedrin.
17. Sanh. I, 5.
18. The Great Sanhedrin.
19. So it is possible that they all went out to do the measuring.
20. Deut. XXIV, 19.
21. The former explains 'in the field' as lying about upon the surface of the field; the Rabbis understand it as hidden somewhere in the field.
22. And the reaper merely overlooked it.
23. And not maintain that it is excluded.
24. If he forgot to cut down a portion of the corn, this remains for the poor.
25. They connect 'forgot' with 'thy field', so that the forgetting applies also to corn standing in the field.
26. And thinking that they were not his, he left them.
27. Some texts read 'afu (flew) instead of zafu. The question relates to the circumstance where the sheaves did not fall upon the field but upon a stone or something similar, so that they were suspended above the field.
28. Consequently so long as the sheaves are in his own field, they come within the law of the forgotten sheaf.
29. And come within the law of the forgotten sheaf.
30. With reference to the teaching of R. Abbabu.
31. Not lying upon the ground.
32. This conclusion would therefore answer R. Jeremiah's question.
33. That his having taken hold of it precludes it from being regarded as a forgotten sheaf.
34. Since it was irrelevant to the issue.
35. It is exempt from the law of the forgotten sheaf because, having been in the owner's hand, it is like something suspended and not lying upon the ground.
36. I.e., in his own town of Pumbeditha he felt as competent to solve difficult problems as did Ben Azzai in his city of Tiberias.
37. The top one is not fully over the other, so that if the measurements are taken from the two, a different city would be the nearest in each case.

Our Rabbis taught: 'Slain,' but not strangled,⁴  'slain,' but not one who is expiring;⁵  'in the land', but not hidden in a heap of stones; 'lying', but not hanging on a tree; 'in the earth', but not floating upon the surface of the water. R. Eleazar says: In all these cases, if the person had been slain, they break the heifer's neck. It has been taught: R. Jose b. Judah said: They asked R. Eleazar, Do you not admit that if he had been strangled and was lying upon a dung-heap,⁶  they do not break the heifer's neck?⁷  [Yes:] consequently [you must agree that] 'slain' indicates one who is not strangled; similarly 'in the earth' indicates one who is not hidden in a heap of stones, 'lying' one who is not hanging on a tree, 'in the earth' one who is not floating upon the surface of the water! [How does] R. Eleazar [meet this argument]? — The word 'slain' is written redundantly.⁸

IF IT WAS FOUND NEAR TO THE FRONTIER, OR A CITY THE MAJORITY OF WHOSE INHABITANTS WERE GENTILES etc. Because it is written 'be found', thus excluding what commonly occurs.⁹

OR A CITY IN WHICH THERE IS NO COURT OF JUSTICE. Because we require 'the elders of that city', and such are not [forthcoming].

THEY ONLY MEASURE THE DISTANCE TO A CITY [IN WHICH THERE IS A COURT OF JUSTICE]. This is obvious! Since he stated: OR A CITY IN WHICH IS NO COURT OF JUSTICE [etc.], I know that they only measure the distance to a city in which there is a Court of Justice! — He thereby informs us what is taught in the following: Whence is it that if it was found near a city in which there is no Court of Justice, they leave [the city out] and measure to [the nearest] city which has a Court of Justice? There is a text to state, The elders of that city shall take,¹⁰  i.e., in every case.¹¹

MISHNAH. IF [THE CORPSE] WAS FOUND EXACTLY BETWEEN TWO CITIES, BOTH OF THEM BRING TWO HEIFERS [BETWEEN THEM]. SUCH IS THE STATEMENT OF R. ELIEZER;¹²  BUT JERUSALEM DOES NOT BRING A HEIFER WHOSE NECK IS TO BE BROKEN. IF THE HEAD WAS FOUND IN ONE PLACE AND THE BODY IN ANOTHER PLACE, THEY CARRY THE HEAD TO THE BODY. SUCH IS THE STATEMENT OF R. ELIEZER.¹³  R. AKIBA SAYS: [THEY CARRY] THE BODY TO THE HEAD. FROM WHAT PART [OF THE BODY] DO THEY MEASURE? R. ELIEZER SAYS: FROM THE NAVEL; R. AKIBA SAYS: FROM THE NOSE; R. ELIEZER B. JACOB SAYS: FROM THE PLACE WHERE HE WAS MADE A SLAIN PERSON, FROM THE NECK.

GEMARA. What is R. Eliezer's reason?¹³  — He holds that it is possible to make an exact measurement; and the word 'nearest'¹⁴  holds good of even more than one city.

BUT JERUSALEM DOES NOT BRING A HEIFER WHOSE NECK IS TO BE BROKEN. Because Scripture declares, To possess it,¹⁵  and he is of the opinion that Jerusalem was not apportioned among the tribes.

IF THE HEAD WAS FOUND IN ONE PLACE etc. In what do they differ? If I should say that they differ on the question from where the measurement is to be taken, behold since [the author of the Mishnah] states in the sequel: FROM WHAT PART [OF THE BODY] DO THEY MEASURE? it follows that we are not dealing here with the subject of measurement! — R. Isaac said: They differ because of the regulation that a meth mizwah¹⁶  acquires his place; and thus he means to say: He acquires his place for burial, and where the head is found in one place and the body in another, they carry the head to the body [and bury it there]. Such is the statement of R. Eliezer; but R. Akiba says, [They carry] the body to the head [and bury it there]. In what do they differ? One is of the opinion that the body is in the place where it fell and the head rolled away, while the other is of the opinion that the head remains in the place where it falls while the body falls some way off.

FROM WHAT PART [OF THE BODY] DO THEY MEASURE? In what do they differ? One is of the opinion that the source of existence is in the nose, while the other is of the opinion that the source of existence is in the navel. Is this to say [that they differ on the same point] as the following teachers: From where is the embryo formed? From the head, and thus it states: Thou art He that took me [gozi] out of my mother's womb,¹⁷  and it further states: Cut off [gozi] thine hair and cast it away etc.¹⁸  Abba Saul Says: It is from the navel, and its root spreads in all directions [from there]! — You may even say that Abba Saul [agrees with R. Akiba], because Abba Saul's statement only applies to the formation, that when an embryo is formed it is formed from the centre, but with respect to existence all agree that [its source is] in the nose; for it is written: All in whose nostrils was the breath of the spirit of life etc.¹⁹

R. ELIEZER B. JACOB SAYS: FROM THE PLACE WHERE HE WAS MADE A SLAIN PERSON, FROM THE NECK. What is the reason of R. Eliezer b. Jacob? — Because it is written: To lay thee upon the necks of the wicked that are slain.²⁰

MISHNAH. WHEN THE ELDERS OF JERUSALEM²¹  HAD DEPARTED AND GONE AWAY, THE ELDERS OF THAT CITY²²  TAKE A HEIFER OF THE HERD²³  WHICH HAS NOT DRAWN IN THE YOKE, AND A BLEMISH DOES NOT DISQUALIFY IT. THEY BRING IT DOWN TO A RAVINE WHICH IS STONY²⁴  — 'ETHAN' IS TO BE UNDERSTOOD IN ITS LITERAL SENSE OF 'HARD' — BUT EVEN IF IT BE NOT STONY, IT IS FIT [FOR THE CEREMONY]. THEY THEN BREAK ITS NECK WITH A HATCHET FROM BEHIND.²⁵  THE SITE MAY NEVER BE SOWN OR TILLED, BUT IT IS PERMITTED TO CARD FLAX AND CHISEL STONES THERE. THE ELDERS OF THAT CITY THEN WASH THEIR HANDS WITH WATER IN THE PLACE WHERE THE HEIFER'S NECK WAS BROKEN AND DECLARE, OUR HANDS HAVE NOT SHED THIS BLOOD, NEITHER HAVE OUR EYES SEEN IT.²⁶  BUT CAN IT ENTER OUR MINDS THAT THE ELDERS OF A COURT OF JUSTICE ARE SHEDDERS OF BLOOD! [THE MEANING OF THEIR STATEMENT IS], HOWEVER, [THE MAN FOUND DEAD] DID NOT COME TO US [FOR HELP] AND WE DISMISSED HIM WITHOUT SUPPLYING HIM WITH FOOD, WE DID NOT SEE HIM AND LET HIM GO WITHOUT ESCORT.²⁷

1. The scholars who thought of solving the question from this Baraitha.
2. Who maintained that a hidden sheaf came within the law of the forgotten sheaf.
3. Who excludes a hidden sheaf from the law.
4. The Hebrew for slain (halal) denotes by the sword.
5. Not actually dead.
6. So the body was not hanging, hidden or floating.
7. For the reason that he was not 'slain'.
8. It occurs four times in Deut. XXI, 1-9; emphasing that he must be 'slain' and not 'strangled'.
9. It frequently happened that dead bodies were found in such localities.
10. Deut. XXI, 3.
11. The measurement must always be made and the nearest city containing 'elders' ascertained.
12. [J. adds: BUT THE SAGES SAY ONLY ONE CITY BRINGS A HEIFER WHOSE NECK IS TO BE BROKEN BUT TWO CITIES DO NOT BRING.]
13. For requiring two heifers if the body is found equidistant between two cities.
14. Deut. XXI, 3.
15. Deut. XXI, I.
16. Lit., 'a dead body which is a commandment'; i.e., an unattended corpse, and it is the duty of whoever finds it to be concerned with its burial. The Talmud (B.K. 81b) relates that when Joshua divided out the land, he imposed a condition that a meth mizwah should be buried in whatever spot he is found.
17. Ps. LXXI, 6.
18. Jer. VII, 29. On the basis of the similar word in this verse, it is explained in the former as 'the place where my hair grows', i.e., the head.
19. Gen. VII, 22.
20. Ezek. XXI, 34.
21. The members of the Great Sanhedrin whose duty it was to make the measurement.
22. Which is found to be nearest the corpse.
23. Defined in Parah I, 1 as less than a year old.
24. The word ethan (Deut. XXI, 4) is interpreted by Maimonides in the sense given in the E.V. viz., running water.
25. Not in front as in the act of ritual slaughter.
26. Deut. XXI, 7.
27. [In the J. text of the Mishnah and in MS.M. the words 'without … food' and 'without escort' are missing, and in the Gemara there it is stated that the reference is not, as maintained by the Babylonian scholars, to the murdered person, but to the murderer. The elders, that is to say, declare that 'he did not come to us and we dismissed him or allowed him to go unpunished.']