MISHNAH. THEY [THE JUDGES] USED TO EXAMINE THEM1 WITH SEVEN [HAKIROTH] SEARCHING QUERIES: IN WHAT SEPTENNATE?2 IN WHAT YEAR? IN WHAT MONTH? ON WHICH DAY OF THE MONTH? ON WHAT DAY?3 AT WHAT HOUR [OF THE DAY]? AND, AT WHAT PLACE? R. JOSE SAID: [THEY WERE ONLY ASKED:] ON WHICH DAY [OF THE WEEK]? AT WHAT HOUR? AND, AT WHAT PLACE? [THEY WERE FURTHER ASKED:] DID YE KNOW HIM?4 AND, DID YE WARN HIM?5
WHERE ONE COMMITS IDOLATRY, [THE WITNESSES ARE ALSO ASKED] WHAT6 DID HE WORSHIP? AND, HOW7 DID HE WORSHIP? THE MORE EXHAUSTIVE THE CROSS-EXAMINATION [BEDIKOTH] THE MORE PRAISEWORTHY THE JUDGE. IT ONCE HAPPENED THAT BEN ZAKKAI8 CROSS-EXAMINED [THE WITNESSES] EVEN AS TO THE STALKS OF THE FIGS.9
WHAT IS THE DIFFERENCE BETWEEN HAKIROTH AND BEDIKOTH?10 — IN HAKIROTH, IF ONE [OF THE WITNESSES] ANSWERS: 'I DO NOT KNOW,' THEIR11 EVIDENCE IS VOID. WITH RESPECT TO BEDIKOTH, HOWEVER, IF ONE ANSWERS: I DO NOT KNOW,' OR EVEN IF BOTH SAY: 'WE DO NOT KNOW, THEIR EVIDENCE IS VALID. BUT IF THEY [THE WITNESSES] CONTRADICT EACH OTHER, WHETHER IN THE HAKIROTH OR THE BEDIKOTH, THEIR EVIDENCE IS VOID.
IF ONE [WITNESS] TESTIFIES, '[IT HAPPENED] ON THE SECOND OF THE MONTH,' AND THE OTHER, 'ON THE THIRD OF THE MONTH:' THEIR EVIDENCE IS VALID, FOR ONE MAY HAVE BEEN AWARE OF THE INTERCALATION OF THE MONTH AND THE OTHER MAY NOT HAVE BEEN AWARE OF IT.12 IF, HOWEVER, ONE SAYS, 'ON THE THIRD,' AND THE OTHER, 'ON THE FIFTH, THEIR EVIDENCE IS INVALID. SIMILARLY, IF ONE TESTIFIES, 'DURING THE SECOND HOUR [OF THE DAY]'13 AND THE OTHER 'DURING THE THIRD HOUR:' THEIR EVIDENCE IS VALID.14 BUT IF ONE SAYS, AT THREE,' AND ANOTHER, 'AT FIVE,' THEIR EVIDENCE IS INVALID.15 R. JUDAH SAID: [EVEN THEN, THEIR EVIDENCE IS] VALID. BUT IF ONE SAYS, 'AT FIVE,' AND THE OTHER, 'AT SEVEN,' THEIR EVIDENCE IS INVALID, FOR AT FIVE THE SUN IS TO THE EAST, WHILE AT SEVEN, THE SUN IS TO THE WEST.
AFTER THIS, THE SECOND [WITNESS] IS ADMITTED16 AND [LIKEWISE] EXAMINED. IF THEIR EVIDENCE TALLIES, THEY [THE JUDGES] COMMENCE [THE PROCEEDINGS] IN FAVOUR [OF THE ACCUSED].17
SHOULD ONE OF THE WITNESSES DECLARE, 'I HAVE SOMETHING TO SAY IN HIS FAVOUR'; OR ONE OF THE DISCIPLES, 'I HAVE AN ARGUMENT IN HIS DISFAVOUR', HE IS SILENCED.18 BUT IF A DISCIPLE SAYS, 'I HAVE SOMETHING TO PLEAD IN HIS FAVOUR', HE IS BROUGHT UP AND SEATED WITH THEM,19 AND DOES NOT DESCEND FROM THERE ALL THAT DAY. IF THERE IS SUBSTANCE IN HIS STATEMENT HE IS HEARD. AND EVEN IF HE [THE ACCUSED] HIMSELF SAYS,' I AM IN A POSITION TO PLEAD IN MY OWN DEFENCE, HE IS HEARD, PROVIDED THERE IS SUBSTANCE IN HIS STATEMENT.
IF THEY FIND HIM NOT GUILTY, HE IS DISCHARGED, IF NOT, IT [THE TRIAL] IS ADJOURNED TILL THE FOLLOWING DAY,20 WHILST THEY [THE JUDGES] GO ABOUT IN PAIRS,21 PRACTISE MODERATION IN FOOD, DRINK NO WINE THE WHOLE DAY,22 AND DISCUSS23 THE CASE THROUGHOUT THE NIGHT. EARLY NEXT MORNING THEY REASSEMBLE IN COURT. HE WHO IS IN FAVOUR OF ACQUITTAL STATES, 'I DECLARED HIM INNOCENT AND STAND BY MY OPINION.' WHILE HE WHO IS IN FAVOUR OF CONDEMNATION SHALL SAY: 'I DECLARE HIM GUILTY AND STAND BY MY OPINION.' ONE WHO [PREVIOUSLY] ARGUED FOR CONVICTION MAY NOW ARGUE FOR ACQUITTAL, BUT NOT VICE VERSA. IF THEY HAVE MADE ANY MISTAKE, THE TWO JUDGES' CLERKS24 ARE TO REMIND THEM THEREOF.
IF THEY FIND HIM NOT GUILTY, THEY DISCHARGE HIM. IF NOT, THEY TAKE A VOTE.25 IF TWELVE ACQUIT AND ELEVEN CONDEMN, HE IS ACQUITTED. IF TWELVE CONDEMN AND ELEVEN ACQUIT, OR IF ELEVEN CONDEMN AND ELEVEN ACQUIT AND ONE SAYS, 'I DO NOT KNOW,'26 OR EVEN IF TWENTY-TWO ACQUIT OR CONDEMN AND A SINGLE ONE SAYS, 'I DO NOT KNOW,'27 THEY ADD TO THE JUDGES. UP TO WHAT NUMBER IS THE COURT INCREASED? — BY TWOS UP TO THE LIMIT OF SEVENTY-ONE.28
IF THIRTY-SIX ACQUIT AND THIRTY-FIVE CONDEMN,29 HE IS ACQUITTED. BUT IF THIRTY-SIX CONDEMN AND THIRTY-FIVE ACQUIT, THE TWO SIDES DEBATE THE CASE TOGETHER UNTIL ONE OF THOSE WHO CONDEMN AGREES WITH THE VIEW OF THOSE WHO ARE FOR ACQUITTAL.
GEMARA. 'Whence is this30 inferred? — Rab Judah said: Scripture states, Then shalt thou inquire and make search and ask diligently;31 and it says, And [if] it be told thee and thou hear it, then shalt thou inquire diligently;32 again it says, And the judges shall inquire diligently.33
Original footnotes renumbered.
- The witnesses, in a capital charge, after admonition. Other versions read 'him', i.e., the witness, since the witnesses were separately examined.
- Of the Jubilee, was the murder committed?
- Of the week. This latter inquiry is necessary because witnesses who might come to refute their evidence, might not remember the date while knowing on what day of the week it took place. (Rashi).
- Rashi, the murderer; Maim. and others: the accused: R. Hananel: the murderer and the accused.
- That murder is forbidden on pain of death? These two questions, according to Maimonides (Yad 'Eduth, I, 4-5) belong to the specific category of [H] (inquiry) which is on the one hand treated like [H] (investigation) in that the evidence is invalid if one of the witnesses cannot answer them; and on the other like [H], (cross-examination) in this respect that the witnesses are not amenable to the law of retaliation in case of refutation.
- I.e., which idol?
- Lit., 'with what?'
- Cf. infra 41a.
- Of the tree under which a murder was alleged to have been committed.
- HAKIROTH refers to the questions on date, hour and place: BEDIKOTH to cross examination on the accompanying circumstances.
- I.e., that of both witnesses.
- I.e., one knew that the previous month had consisted of thirty days whilst the other thought that it had consisted only of twenty-nine days provided they agree as to the day of the week. Cf. Kesef Mishneh, on Yad'Eduth II, 4, and Tosaf. 41b s.v. [H].
- The length of the day was counted from sunrise to sunset, and having regard to the variation of that period, an hour lasted anywhere between 49 and 71 minutes.
- For people are liable to error in matters of the exact time in the hour.
- An error in two hours is improbable.
- Mishnah supra pp. 175-6.
- V. supra 32b.
- Cf. supra 34a. Witnesses after having given their testimony, are not allowed to make any further statements, even for acquittal, as they might do so with a view to avoiding any possible charge of collusion arising out of their first evidence.
- The judges. It follows that the judges sat on raised seats faced by the disciples. V. supra p. 230, n. 10.
- Cf. supra 32a, and note.
- During the adjournment, to discuss the matter.
- Another precautionary measure in capital cases
- [V. Yad Ramah.]
- Cf. supra 36b.
- Lit., 'they stand to vote.'
- So that there is no majority of two for conviction. cf. supra 2a.
- The member who is doubtful is regarded as non-existent (cf. supra 17a), whilst capital cases may not be tried by less than twenty-three.
- If there is a division of opinion amongst the newly co-opted members.
- When the court has been increased to the extreme limit.
- The seven questions of time and place.
- Deut. XIII, 15. In reference to a condemned city. The three expressions for investigation indicate three questions. It should be observed, however, that the Talmud does not regard the word 'ask' by itself as teaching that a formal question must be put to the witnesses but that here it is coupled with 'diligently'.
- Ibid. XVII, 4, in connection with the trial of an idolater. The words thou shalt inquire denote one question, and the emphasis, diligently, a second.
- Ibid. XIX, 18, with reference to witnesses proved Zomemim (v. Glos). Here also two questions are implied. Hence seven questions in all are necessary.
But perhaps we should say that each case is as written,1 for if it be so,2 the Divine Law should have stated them in a single case?3 — Since all [seven] are severally prescribed,4 [the requirements of] each is inferred from the other,5 and that being so, it is as though all [seven] were written with reference to each. But surely they [the cases in question] are not similar to each other!6 (Mnemonic: Spared, Sword, Warning.) Thus: The condemned city is unlike the other two,7 for their possessions [the condemned's, in the latter two charges,] are spared.8 Again, idolatry differs from the other two cases, for in them [execution is] by the sword.9 Again, witnesses proved Zomemim are unlike the other two cases, since they require a formal warning?10 — We infer it11 from the identical use of 'diligently'12 and the gezerah-shawah13 is free,14 for otherwise, it [the deduction] could be refuted.15 And it is truly free: since Scripture could have read,16 And they shall inquire and they shall search,17 and yet changes its expression [by employing the word] 'diligently',18 it follows that the purpose thereof was to leave it free.19 But it [the analogy] is free only on one side!20 [For] granted that it is free in these two cases,21 since [another expression] could have been used:22 in the case of the condemned city,23 what else could have been written:24 for are not all [three]25 employed?26 — There too it [sc. 'diligently'] is truly free, for Scripture could have read, Inquiring thou shalt inquire,27 or searching thou shalt search;28 and varies the idiom by the use of 'diligently'; it may therefore be inferred that this was in order to leave it free.29
Now,30 we infer [the same requirement for charges punishable by] strangulation a minori from cases punishable by stoning or decapitation.31 Again, the same is deduced for cases of burning a minori from those of stoning.32 This [however] is right on the view of the Rabbis that stoning is severer [than burning]. But what is to be said on the view of R. Simeon that burning is the severer?33 — Rab Judah therefore said: [Scripture states,] Behold if it be truth and the thing certain,34 [and again] Behold if it be truth and the thing certain:35 this gives eleven [expressions implying inquiry].36 Seven [are employed] to indicate the seven queries: then subtracting the three needed for the gezerah shawah,37 one still remains, whose purpose according to R. Simeon, is to include the cases of burning,38 whereas according to the Rabbis,39 [the necessary explanation is that] Scripture [sometimes] takes the trouble of stating a fact which can be deduced a minori. R. Abbahu ridiculed this [explanation]: Perhaps it [the eleventh expression] indicates an eighth query!40 But are eight queries [hakiroth] conceivable?41 Why not? Surely, What part of the hour, may be added [as the eighth question]! And indeed, it has been taught even so: 'They examined him with eight queries.' Now, that is correct42 according to Abaye on R. Meir's ruling, viz., A man is [to be treated as] not liable to make even the slightest error.43 And even according to the version which states, A man is liable to make a slight error: it is also right.44 But according to Abaye on R. Judah's ruling, viz., A man is liable to err to the extent of half an hour, and according to Raba, who said, People are liable to err to even a greater extent, what can you say? — Well then, [the eleventh expression] may be intended to add, 'Which year of the Jubilee' as a query. But that is identical with: 'In what septennate?'! — Rather this is the additional question: 'In what Jubilee? And the other Tanna? — 45 Since he [the witness] tells us in which septennate, it is necessary to ask: 'In which Jubilee?'46
R. JOSE SAID etc. it has been taught: R. Jose said to the Sages: According to your view, one who comes and testifies, 'He killed him last night,' must be asked: 'In which septennate? In what year? In what month? On what day of the month?' They retorted: And according to your view, one who comes and declares, 'He killed him just now,' is to be asked: 'On what day? At what hour? And where?' But [you too must answer that] even though the questions may be unnecessary, they are put to them [the witnesses], in accordance with the view of R. Simeon b. Eleazar;47 so here too,48 even if they are unnecessary, they are put to them [the witnesses], in accordance with R. Simeon b. Eleazar's view. And R. Jose?49 — 'He killed him last night,' is a frequent testimony; whereas, 'He has killed him just now,' is rare.50
DID YE KNOW HIM? Our Rabbis taught: [The following questions are asked]: Do ye know him? Did he kill a heathen? Did he kill an Israelite? Did ye warn him? Did he accept your warning?51 Did he admit his liability to death?52 Did he commit the murder within the time needed for an utterance?53 Where he committed idolatry, [the witness is asked:] Which [idol] did he worship? Did he worship Peor?54 Did he worship Merkolis?55 How did he worship? By sacrifice, offering incense, libations, or prostration?
'Ulla said: Where is the need of warning intimated in the Torah? — In the verse, And if a man shall take his sister, his father's daughter, or his mother's daughter, and see her nakedness.56 Does guilt then depend upon [mere] seeing? Hence it must mean [that he is liable to punishment] only if he 'sees' the reasonableness thereof.57 And since this is inapplicable to Kareth,58
Original footnotes renumbered.
- I.e., three questions are to be put to the case of the condemned city; two in a charge of idolatry, and two for Zomemim.
- That seven are necessary in each individual charge.
- Whence the procedure for all other capital charges would follow.
- I.e., in the three charges taken together. [Our text is difficult. Yad Ramah reads [H] 'Since all have been prescribed for the purpose of enquiry'].
- I.e., since close examination is stated in the case of each, the three charges are assimilated to each other, and therefore the questions that are to be put in one case are to be put in the others too (Rashi)
- How then assimilate the three charges to each other?
- That of the idolater and the Zomemim.
- This act of leniency may indicate a greater degree of leniency in general, therefore a more rigid inquiry might be necessary, this too being in favour of the accused; but in the case of the condemned city, where the possessions of the condemned are destroyed, the inquiries might be less exacting, since the general tendency there is to greater severity. Hence only the number explicitly stated, as above, may be necessary.
- Deut. XIII, 16, with regard to the condemned city. V. also Deut. XIX, 21, where a false charge of murder seems to be referred to, which is punished by decapitation, which is therefore also the punishment of the Zomemim. This is a milder form of death than stoning, the penalty for idolatry. Cf. infra 49b.
- I.e., before conviction is possible but in the case of Zomemim, no previous warning is required. V. Keth. 33a and Rashi's interpretation a.l., which is based on the verse. Ye shall do unto him as he had purposed to do unto his brother. Since then the cases are dissimilar, how could the procedure in all capital cases be learnt from one?
- That the requirements of each case are transferred to the others
- Which is common to all the three verses cited.
- V. Glos.
- I.e., the words of the text which form the basis of the analogy are pleonastic and not legally essential.
- As shown above. It is a principle of exegesis that if the two terms of the analogy are not altogether similar the deduction of the gezerah shawah is not valid. V. also p. 363, n. 3.
- With reference to the Zomemim.
- Which is the expression used in respect of a condemned city.
- I.e., instead of 'they shall search', the second question was expressed by 'diligently'.
- I.e., though the main purpose of the verse is to indicate the number of questions to be put, this alteration of expression serves the subsidiary purpose too of intimating that the verse is free, so as to permit an analogy to be drawn.
- I.e., the word 'diligently' which forms the basis of the analogy is pleonastic only in one of the two terms that are compared, regarding idolatry and Zomemim as one term, and a condemned city as the other. Hence the analogy can be rejected. (This is a matter of dispute on the part of various teachers; v. p. 363, n. 3.)
- Sc. idolatry and Zomemim.
- E.g., make a search. The modification of the expression therefore denotes a basis for the analogy.
- Where there is the expression search.
- Instead of 'diligently'.
- I. e., (i) thou shalt inquire; (ii) and make search, (iii) and ask diligently, 'ask' by itself being disregarded, as stated on p. 258. n. 4.
- Hence 'diligently' cannot be regarded as pleonastic and consequently the analogy can be refuted.
- [H] [H] The connection of the infinitive with the verb to convey emphasis is a common feature in the Bible. Cf. Ex. XXII, 3: Deut. XV, 10, 14.
- Hence it is free on both sides, and so cannot be rejected.
- Since the need of the seven questions has been established in cases punishable by stoning or decapitation, viz., idolatry and witnesses proved Zomemim.
- Strangulation is regarded as a milder form of death than the former two, hence the seven questions are certainly necessary there. (V. p. 259, n. 2).
- Stoning is severer than burning, and decapitation milder.
- I.e., how then can we deduce a seven-fold inquiry from cases involving a milder to those involving a severer punishment?
- Deut XIII, 15, with reference to the condemned city.
- Ibid. XVII, 4, with reference to the idolater.
- For 'if it be truth' implies that a question is put to ascertain it; likewise,'and (if) the thing (be) certain' implies another question; hence the two sentences imply another four questions, in addition to the seven.
- Sc. concerning the word 'diligently' in the cases of idolatry, Zomemim, and the condemned city.
- That there too the witnesses must be examined with the seven queries of time and place.
- For, as stated above, they declared the need of seven queries in the cases of charges punishable by burning a minori from stoning. What need then of the eleventh expression, which likewise indicates the case of burning? Hence this assumption must be made.
- How can it be taken for certain that its purpose is to extend the law of seven queries to charges of burning?
- I.e., can one ask a further question through which false witnesses may be declared Zomemim?
- I.e., that eight queries are conceivable, each of which may serve the purpose of refuting the witnesses.
- In regard to the exact time (Pes. 11b). So that, should the witnesses be refuted over a matter of half an hour, e.g., if they stated that they witnessed a murder at 4:30, and other witnesses testify that they were elsewhere, we do not assume that they might have witnessed the murder at 4 or 5, and erred in half an hour, but declare them Zomemim. Hence a purpose is served by questioning them on the precise part of the hour.
- To add another query as regards the precise part of the hour.
- Who does not favour an eight-fold inquiry, — what view does he hold?
- Since it is highly improbable that evidence would be postponed from one Jubilee to another (Rashi) (Or. one includes the other, v. Yad Ramah]. — It may be observed that owing to the discussion on the possibility or need of eight questions, R. Abbahu's objection remains unanswered, unless it be assumed that R. Simeon who maintains that burning is severer than stoning also agrees with the Tanna of the Mishnah that only seven questions are put.
- Cf. supra. 32b. 'They shall take the witnesses from one place to another in order to confuse them.'
- I.e., to defend our view.
- How does he maintain his objection, seeing that it may rightly be raised against his own view too?
- Therefore R. Jose maintains that the latter possibility may be disregarded.
- By saying, e.g., 'I know that I am warned not to do so.'
- By answering you, e.g., 'Even though I shall be punished by such and such a death, yet I will commit this crime.'
- Such as a greeting from a disciple to teacher, e.g., 'Peace be unto thee, my Master and Teacher'. V. B.K. 73b; Mak. 6a. If the murder was delayed longer, the plea that he forgot the warning might be accepted. (Rashi)
- Num. XXV, 1-9. Worshipped by obscene rites. V. infra 60a, and Rashi, on Num. loc. cit., also p. 410, n. 1.
- [H], Roman, Mercurius, Greek, Hermes, the patron deity of wayfarers. V. p. 410, n. 2.
- Lev. XX, 17.
- I.e., if the witnesses previously warn him that his proposed action is forbidden on pain of kareth.
- [H]; excision — punishment by Heaven, where no warning is needed, since God knows whether the culprit was aware of the forbidden nature of his action or not.