MISHNAH. BOTH CIVIL AND CAPITAL CASES DEMAND INQUIRY AND EXAMINATION.1 AS IT IS WRITTEN: YE SHALL HAVE ONE MANNER OF LAW.2 WHAT IS THE DIFFERENCE BETWEEN CIVIL AND CAPITAL CASES? — CIVIL SUITS [ARE TRIED] BY THREE; CAPITAL CASES BY TWENTY-THREE3 CIVIL SUITS MAY BE OPENED EITHER FOR ACQUITTAL OR CONDEMNATION; CAPITAL CHARGES MUST BE OPENED FOR ACQUITTAL, BUT NOT FOR CONDEMNATION.4 CIVIL SUITS MAY BE DECIDED BY A MAJORITY OF ONE, EITHER FOR ACQUITTAL OR CONDEMNATION; WHEREAS CAPITAL CHARGES ARE DECIDED BY A MAJORITY OF ONE FOR ACQUITTAL, BUT [AT LEAST] TWO FOR CONDEMNATION.5 IN MONETARY CASES THE DECISION MAY BE REVERSED6 BOTH FOR A ACQUITTAL AND FOR CONDEMNATION; WHILST IN CAPITAL CHARGES THE VERDICT MAY BE REVERSED FOR ACQUITTAL ONLY, BUT NOT FOR CONDEMNATION; WHILST IN CAPITAL CHARGES THE VERDICT MAY BE REVERSED FOR ACQUITTAL ONLY, BUT NOT FOR CONDEMNATION. IN MONETARY CASES, ALL7 MAY ARGUE FOR OR AGAINST THE DEFENDANT; WHILST IN CAPITAL CHARGES, ANYONE MAY ARGUE IN HIS FAVOUR, BUT NOT AGAINST HIM. IN CIVIL SUITS, HE WHO HAS ARGUED FOR CONDEMNATION, MAY8 THEN ARGUE FOR ACQUITTAL, AND VICE VERSA; WHEREAS IN CAPITAL CHARGES, ONE WHO HAS ARGUED FOR CONDEMNATION MAY SUBSEQUENTLY ARGUE FOR ACQUITTAL, BUT NOT VICE VERSA.9
CIVIL SUITS ARE TRIED BY DAY, AND CONCLUDED AT NIGHT.10 BUT CAPITAL CHARGES MUST BE TRIED BY DAY AND CONCLUDED BY DAY. CIVIL SUITS CAN BE CONCLUDED ON THE SAME DAY, WHETHER FOR ACQUITTAL OR CONDEMNATION; CAPITAL CHARGES MAY BE CONCLUDED ON THE SAME DAY WITH A FAVOURABLE VERDICT, BUT ONLY ON THE MORROW WITH AN UNFAVOURABLE VERDICT.11 THEREFORE TRIALS ARE NOT HELD ON THE EVE OF A SABBATH OR FESTIVAL.12 IN CIVIL SUITS.13 AND IN CASES OF CLEANNESS AND UNCLEANNESS, WE BEGIN WITH [THE OPINION OF] THE MOST EMINENT [OF THE JUDGES]; WHEREAS IN CAPITAL CHARGES, WE COMMENCE WITH [THE OPINION OF] THOSE ON THE SIDE [BENCHES].
ALL ARE ELIGIBLE TO TRY CIVIL SUITS, BUT NOT ALL ARE ELIGIBLE TO TRY CAPITAL CHARGES, ONLY PRIESTS, LEVITES, AND ISRAELITES [LAYMEN] WITH WHOM PRIESTS CAN ENTER INTO MARRIAGE RELATIONSHIP.14
GEMARA. Do civil suits really need inquiry and examination? The following opposes it: If a bond is dated the first of Nisan in the Shemittah,15 and witnesses came and said: 'How can ye testify to this bond: were ye not with us on that day in such and such a place?' the bond is valid, and its signatories remain competent [witnesses], for we presume that they might merely have postponed writing it.16 Now if you should think that inquiry and examination are necessary, how 'presume that they might merely have postponed writing it?17 — But on your reasoning, one should object rather to the [following] Mishnah:18 Ante-dated bonds19 of indebtedness are invalid;20 if post-dated, they are valid.21 Now, if you should think that examination and inquiry are necessary, why are post-dated notes valid?22 — This23 is no difficulty, for a more powerful objection is raised,24 viz., that even in the case of a bond dated the first of Nisan in the Sabbatical year, when people, as a rule, do not transact loans, and when, consequently, we cannot [plausibly] say that the writing [of the bond] might have been postponed, since no one would intentionally weaken the validity of his document:25 yet since the annulment of debts is effectuated only at the expiration of the Sabbatical year, we declare the bond valid.26 At all events, however, the difficulty27 remains.
(Mnemonic: HaRPaSH.28 )
R. Hanina said: By Biblical law, both monetary and capital cases require inquiry and investigation, as it is written: One manner of judgment ye shall have.29 Why then were civil suits exempted from this procedure? In order not to lock the door against borrowers.30 But if so,
Original footnotes renumbered.
- Heb. [H], i.e., examination of witnesses on the main points, e.g., amount (loaned), date and place.
- Lev. XXIV, 22. I.e., both capital and monetary cases shall be alike. With regard to capital cases it is written; Then shalt thou inquire and make search (Deut. XIII, 15).
- V. supra 2a; 23a.
- The reference is to the judicial debate on the matter. In civil suits, the points in favour of condemnation may be put first; but in capital charges, the arguments for acquittal must be first marshalled, but v. Krauss, a.l. for another interpretation. But of course, it cannot refer to the actual opening of the case; the indictment and case for the prosecution must obviously be stated before there is a charge to answer.
- V. supra 2a and infra 36b.
- On errors being revealed.
- Even the pupils, those seated behind the judges for the purpose of filling up vacancies. Cf. infra 37a.
- On finding his arguments erroneous.
- According to Rashi, this is deduced from Num. XXXV, 25, The Congregation shall deliver the manslayer, meaning that all the endeavours of the court should be directed towards deliverance. According to Maim., Yad, Sanh., X, 2, it is deduced from Ex. XXIII, 2, Neither shalt thou speak in a quarrel to incline etc. Probably he based his deduction on the Mekilta comment on the verse, where reference is made to the judges' duty to lean towards acquittal.
- Where the deliberations have been protracted.
- In case points in the accused's favour are discovered during the night.
- Since should he be found guilty, the case cannot be concluded on the morrow, execution being forbidden on Sabbaths and Festivals. (From this it is seen that by 'concluding' the actual carrying out of the sentence is meant, not merely the promulgation of the verdict.) Moreover, it is against the law — except in the case of a rebellious Elder, v. infra 89a — to leave judgement in suspense. V. Maim., Yad, Sanh. XII, 4.
- CIVIL SUITS is omitted in most Mishnaic versions.
- I.e., of pure descent.
- [H]; Sabbatical year. Though the regulations of the Sabbatical year include also the annulment of all monetary obligations, 'when the creditor is legally debarred from collecting his debt (v. Deut. XV, 2), yet in various exceptional cases the law of Shemittah did not operate, e.g., if a Prosbul ([H]) had been written. This was a legal instrument executed and attested in Court whereby the lender retained the right to collect the debt at any time he thought fit (cf. Sheb. X, 4). Further shemittah does not affect a loan advanced on a pledge, or where the claim for collection had been made before the expiration of the Sabbatical year, in which cases loans are not annulled. V. 'Ar. 28b.
- I.e., they might have witnessed the loan on an earlier date, but have postponed writing the bond until the first day of Nisan (Rashi). [According to Yad Ramah, render, 'they might have post-dated it.' We do not assume that it has been ante-dated (v. infra) as there is a presumption in favour of all duly attested documents, v. B.B. (Sonc. ed.) p. 748, n. 16.]
- If such an assumption is permissible, examination as to date and placed is purposeless.
- Rather than the Baraitha, since scholars are more conversant with the Mishnah than with Baraithoth.
- I.e., bearing on the evidence of witnesses, of an earlier date than the actual loan.
- As a rule the debtor's property is given as security for the loan, and in the case of default, the creditor may seize it if sold after the loan was incurred, but not before. Hence, if the note was ante-dated, sold property might be seized unlawfully. In order to prevent this, an ante-dated bond was declared altogether invalid, even from the date of transaction. Cf. B.M. 72a.
- It appears that the creditor must have renounced his security for the period between the date of the loan and that appearing on the note.
- Seeing that they might be mere forgeries? Hence, even if the loan itself is attested as having taken place, it should rank as only a verbal loan, which cannot be collected from property sold even after it was incurred.
- I.e., the fact that the objection is raised on the ground of a Baraitha rather than of a Mishnah.
- In the Baraitha quoted.
- By dating it some time in the Sabbatical year, when the debt is threatened with annulment, and so inevitably arousing the suspicion of forgery.
- By assuming its writing has been postponed to the Sabbatical year. Thus, this assumption, since it is possible, is made in spite of its improbability, a loan in the Sabbatical year still being rare. How much more so is the assumption to be made in normal cases. Why then should the witnesses be examined on the date, since even if it is disproved, their testimony holds good?
- I.e., the fact that the Baraitha is contradictory to our Mishnah; v. preceding note.
- V. p. 21, n. 5. Here it stands for R. Hanina, Raba, R. Papa, and R. ASHi. the four Rabbis whose views are given here.
- Lev. XXIV, 22.
- V. supra 2b. The view expressed in our Mishnah was taught before this enactment; and the Baraitha and Mishnah in Sheb., after this enactment.
when they [the judges] erred [in their verdict], they should not be liable! — Then thou wouldst most certainly lock the door against borrowers.1
Raba2 said: Our Mishnah refers to a case of Kenas,3 the other teachings4 to the admission and transaction of loans.5
R. Papa said:6 Both this and the other teachings deal with the admission and transaction of loans. In our Mishnah, however, the suit is [suspected of being] dishonest,7 while in the other,8 the claim is [i.e., appears] genuine. This agrees with Resh Lakish, for Resh Lakish opposed [two verses to each other]: It is written, In justice9 shalt thou judge thy neighbour;10 but elsewhere, Justice, justice shalt thou follow.11 How so? — The latter refers to a suit suspected to be dishonest; the former, to an [apparently] genuine claim.
R. Ashi said: The [contradictory] teachings are reconciled as above;12 but as for the [Scriptural] verses, one13 refers to a decision based on strict law, the other to a compromise. As it has been taught: Justice, justice shalt thou follow; the first [mention of justice] refers to a decision based on strict law; the second, to a compromise. How so? — E.g., where two boats sailing on a river meet; If both attempt to pass simultaneously, both will sink,14 whereas, if one makes way for the other, both can pass [without mishap]. Likewise, if two camels met each other while on the ascent to Beth-Horon;15 if they both ascend [at the same time] both may tumble down [into the valley]; but if [they ascend] after each other, both can go up [safely]. How then should they act? If one is laden and the other unladen, the latter should give way to the former. If one is nearer [to its destination] than the other,16 the former should give way to the latter. If both are [equally] near or far [from their destination,] make a compromise between them, the one [which is to go forward] compensating the other [which has to give way].
Our Rabbis taught: Justice, justice shalt thou follow, means, Thou shalt follow an eminent Beth din, as for example, [follow] R. Eliezer [b. Hyrkanus] to Lydda.17 or R. Johanan b. Zakkai to Beror Hail.18 It has been taught: The noise of grindstones at Burni19 [announced] a circumcision20 [was being performed]; and the light of a candle [by day, and many candles by night] at Beror Hail, showed that a feast [was being celebrated] there.21
Our Rabbis taught: justice, justice shalt thou follow,' this means, Follow the scholars to their academies. e.g.. R. Eliezer to Lydda, R. Johanan b. Zakkai to Beror Hail,22 R. Joshua to Peki'in,23 Rabban Gamaliel [II] to Jabneh,24 R. Akiba to Benai Berak,25 R. Mathia to Rome,26 R. Hanania b. Teradion to Sikni,27 R. Jose [b. Halafta] to Sepphoris. R. Judah b. Bathyra to Nisibis,28 R. Joshua29 to the Exile,30 Rabbi to Beth She'arim,31 or the Sages32 to the chamber of hewn stones.33
CIVIL SUITS MAY BE OPENED EITHER FOR ACQUITTAL etc. What is said?34 Rab Judah said: We speak thus to them:35 Who can tell that it is as ye say?36 'Ulla objected: But do we not thereby shut their lip?37 — Then let them be shut! Has it not been taught: R. Simeon b. Eliezer said: The witnesses are moved from place to place,38 that they39 may become confused, and withdraw [their evidence].40 What comparison is there! In that case, they are automatically repelled, whereas here, we repel them by our own act!
But, said 'Ulla: We say thus: Have you [sc. the defendant] any witnesses to refute them?41 Rabbah demurred: Can we then open the defence of one in a manner which involves the condemnation of another?42 — But does this really involve his condemnation? Have we not learnt: Witnesses declared Zomemim are not executed unless the verdict has [already] been given!43 — I mean this: Should the defendant remain silent until the verdict is given, and then produce witnesses and refute the others, it involves their condemnation?44 — Therefore Rabbah said: We say to him: Have you any witnesses to contradict them?45
R. Kahana said: [We open the defence by saying,] From your words it appears that so and so is not guilty.46 Abaye and Raba both say: We say to him: If you did not commit the murder, have no fear. R. Ashi says: [We begin thus:] Whoever knows anything in his [sc. the accused's] favour, let him come forward and state it. It has been taught in agreement with Abaye and Raba: Rabbi said, If no man have lain with thee and if thou hast not gone aside to uncleanness, etc.;47
Original footnotes renumbered.
- For notes v. supra 3a.
- Who holds that there is no difference between the teachings, and that they were all taught after the enactment referred to.
- E.g., the payment of the double restitution (v. Glos.), where the fear locking the door against borrowers has no ground.
- The Baraitha and Mishnah in Sheb.
- And where refusal to lend might be a consequence of this enacting procedure.
- In reconciliation of the views of the two teachings.
- The judges find suspicious circumstances attending the claim; therefore full investigation is essential for the establishment of the truth.
- V. p. 202. n. 11.
- E.V. 'righteousness'.
- Lev. XIX, 15.
- Deut. XVI, 20. The repetition of 'justice' indicates the necessity' of stricter investigation than is implied by the single use of the word.
- As explained by R. Hanina, Raba and R. Papa.
- The Biblical emphasis on justice.
- Through collision.
- [H] (lit., 'the house of the hollow'). There were two towns of this name, distinguished on account of their situation, as Beth Horon the Upper, and Beth Horon the Lower. They both lay on the southern border of Ephraim and close to the territory of Benjamin (cf. Josh. XVI, 3, 5; XVIII, 13, 14) Beth Horon the Upper stands on the summit of a conical hill, while a short distance west of this point, on a rocky eminence, stands Beth Horon the Lower. The deep valley between the two places may account for the name, 'The house of the hollow.' The road winds up the mountain in zig-zag line, and is in many places cut in the rock. It is rugged and difficult.
- Lit., 'if one is near and the other is not near.'
- A city in Palestine, twelve miles from Jaffa on the road to Jerusalem. Was famous as a seat of Jewish scholarship after the destruction of the Temple.
- Seat of R. Johanan b. Zakkai's College. near Jabneh (Jastr.) [Klein, S., [H] I, 46, identifies it with the village Burer, west of Beth Gubrin (Eleutheropolis.)]
- A place near Lydda. 'The noise of grinding' was an indication that some ingredients were being ground for the purpose of treating the circumcision wound.
- [H] lit., 'the week of the son' (bis), v. B.B. (Sonc. ed.) p. 246. n. 8.
- Bis: This was (a) during the time of Hadrian, the Emperor, who forbade the observance of the law and the rite of circumcision. Such were the signs by which Jews were invited to celebrate the solemn occasions [V. Graetz, Geschichte, IV, p. 158, who however regards these announcements as words of denunciation by the spies of the Roman Government on noticing these signs. Or (b) during the persecutions under Antiochus, Klein, op. cit., 40ff.]
- [Where he spent the last years of his life, v. Derenbourg, MGWJ. 1893, 304.]
- Or Beki'in, a small town in Palestine, between Jabneh and Lydda. A seat of a Talmudic School during the patriarchate of Gamaliel II.
- A small town on the N.W. borders of Judea, identified with Jabneel of Naftali (Josh. XIX, 33). Seat of the celebrated school after the destruction of Jerusalem, which locality is replaced as the seat of the Sanhedrin. Scholars (Weiss, Graetz, Halevy) disagree as to the exact authority it possessed.
- One of the cities of the tribe of Dan (Josh. XIX, 45) identified with the modern Benai Berak, a flourishing Jewish Colony.
- [He left Palestine at the same time as Judah b. Bathyra and R. Hananiah, the nephew of R. Joshua b. Hananiah (v. infra) shortly before the Bar Kochba war, and making his way to Rome he there established a school, v. Bacher, AT., I, 380.]
- [H] or Sogana (v. Josephus, Vita 51). North of Jotapata in Galilee.
- Nisibis, city in North-eastern Mesopotamia, in the ancient province of Migdona.
- Read: Haninah (nephew of R. Joshua) about whose journey to Babylon. v. Ber. 63a. V. marginal note.
- [He established a school in Nehar Pekod, west of Nehardea, v. Bacher, op. cit. 389.]
- A city identified with El Shajerah, south of Sepphoris. (Neubauer, Geographie, p. 200.) One of the stations the Sanhedrin were destined to pass in its ten exiles during the period 30-170 C.E. V. R.H. 31b; Keth. 103b.
- The Great Sanhedrin (Rashi).
- [H], the chamber of hewn stones in the inner court of the Temple which was the home of the Great Sanhedrin. [On the refutation of Schurer's view that it was the chamber 'close to the Xystus' on the western border of the Temple Mount, v. Krauss, J.E., XII, 576.]
- In opening the case for the defence.
- Sc. the witnesses for prosecution.
- I.e., perhaps your evidence is false
- I.e., discourage them from giving further evidence.
- Rashi: When they came to give evidence, the Court would decline to hear it in that place, but appoint another and at the second place, they found some reason for moving to a third and so on.
- Lit., 'their minds'.
- Tosef. Sanh. IX.
- The accusing witnesses, and prove them Zomemim..
- For in a capital charge, witnesses proved Zomemim are liable to death.
- And unless before it was carried out, they had been proved Zomemim. Consequently, if the accused is invited to produce witnesses to refute the other at this early stage of the proceedings, no question of condemnation arises.
- Hence at the very outset, he must not be invited to prove the accusing witnesses Zomemim.
- I.e., to prove the former evidence false, but not by means of shewing that the witnesses are Zomemim. (V. Glos. and p. 36, n. 3.)
- The judges start by pointing out the weak features of the prosecution, e.g., even if certain statements of the prosecution are proved true, they do not shew the guilt of the accused.
- Num. V, 19.