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,
Sanhedrin 34bWhatsoever toucheth the altar shall be holy,1 I might infer [that this holds good] whether it be fit for the altar or not.2 Scripture therefore says,3 [Now this is that which thou shalt offer upon the altar; two lambs; … just as lambs are fit [for the altar], so are all things that are fit [included in the previous statement].4 R. Akiba said: [Scripture states,] burnt offering:5 Just as the burnt offering is fit [for the altar], so with all things that are so. And what do both exclude? Invalid objects.6 One Master deduces this from the word 'lambs'; the other, from 'burnt offering'.7 But did not R. Adda b. Ahabah say: They differed with respect to a fowl burnt offering which had been disqualified: he who deduced it [the scope of the law] from 'lambs', holds that only lambs are included,8 but not the burnt offering of a fowl; whereas he who deduced it from 'burnt offering' includes even a burnt offering of a fowl? — But, said R. Ashi, it is illustrated by the following Baraitha:9 Blood shall be imputed unto that man, he hath shed blood;10 this11 is to include [him] who sprinkles:12 that is R. Ishmael's view. R. Akiba said: [Scripture adds] Or a sacrifice:13 this is to include him who sprinkles. Thus, What do both include? — Sprinkling; one Master deducing it from the words: Blood shall be imputed, the other from the words: Or a sacrifice.14 But did not R. Abbahu say: They differ where a man both slaughtered and sprinkled [the blood of a sacrifice]:15 for according to R. Ishmael,16 he is liable only to one [sin offering]; whereas on R. Akiba's view,17 he is liable to two? — But surely it was stated regarding this: Abaye said: Even according to R. Akiba he is liable only to one [sin offering], for Scripture writes, There thou shalt offer thy burnt offerings and there thou shalt do [all that I commanded thee]:18 the Divine Law thus grouped all acts [of sacrifice in the same category]!19
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
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