If so, how could R. Jose observe thereon: Even if Abba Halafta were amongst them?1 — But Raba explained it thus: If two were standing, and an arrow was shot by one of them2 [unknown] and killed, they are both exempt. Whereon R. Jose remarked: Even if Abba Halafta was one.3 But if an ox [a gorer] which had been sentenced was mixed up with innocent4 oxen, they are all stoned.5 R. Judah said: They are placed in a cell.6 And thus has it been taught likewise: If a cow killed [a man] and then calved: if before sentence, the calf is permitted [for any use]; if after the sentence, the calf is forbidden.7 If the cow became mixed up with others, and these with others again, they are placed in a cell. R. Eleazar, son of R. Simeon, said: They are [all] brought to Beth din and stoned.
The Master said: 'If [it calved] before sentence, the calf is permitted'; implying, even if it was with calf when it gored. But did not Raba say: The calf of a cow that gored is forbidden, because the mother and the calf gored; the calf of a cow subjected to bestiality is [likewise] forbidden because the mother and the calf were thus subjected!8 — Say thus: If the calf was conceived and born before its mother was condemned, it is permitted [for use]; but if conceived and born after sentence, it is forbidden.9 Now, this agrees with the view that the product of two things [one being forbidden] is itself forbidden;
Original footnotes renumbered.
- Abba Halafta was a pious scholar. Raba objects to both explanations: whether 'others' mean murderers or goring oxen. R. Jose's remark is entirely irrelevant.
- Lit., 'came forth from between them'.
- Though unthinkable that he should have shot the arrow, the other cannot be executed on this ground.
- Lit., 'good'.
- Since, in any case one could not benefit at all from them (v. Zeb. 70b), the owners suffer no loss.
- On this interpretation the text of the Mishnah is assumed to be defective, since R. Judah's ruling cannot refer to the first case.
- Because whilst within its mother, it is regarded as a part thereof. Therefore, when its mother became forbidden for use, as is the case of an animal condemned to stoning (v. Ex. XXI, 28). the prohibition extended to the unborn calf, which remains in force even after its birth.
- The reference is to sacrifice; these animals are not fit to be sacrificed. The act of goring or bestiality was in this case attested by one witness only, so that the cow is not stoned, and is permitted for secular, but not for sacred use, otherwise both mother and calf would be stoned. Thus we see that if the cow was with calf when it gored, the calf is regarded as identical with its mother.
- In the first case, the mother itself was permitted at the time of calving, hence the calf too is likewise permitted; in the second, the cow having being condemned, the calf was the product of a forbidden animal, and hence itself forbidden too; but in both cases, the calf was not yet conceived at the time of goring, whereas Raba's statement applies only if it had already been conceived.
but on the view that such is permitted, what can you say?1 — But Rabina said: Read thus: If the calf was conceived and born before its mother was condemned, it is permitted: but if conceived before sentence and born after sentence, it is forbidden, because the embryo is a thigh [i.e., part] of its mother.2
IF A NUMBER OF CONDEMNED PERSONS DIFFERING IN THEIR DEATH SENTENCES ETC. … [THEY ARE EXECUTED BY THE MOST LENIENT DEATH]. This proves that a warning of a greater penalty is ipso facto a warning for a smaller one too!3 — R. Jeremiah said: [This is no proof, for] the Mishnah treats of a case where he was warned in general terms,4 and it agrees with the following Tanna. For it has been taught: But others liable to any death penalty decreed in the Torah5 are executed only on the testimony of [at least two] witnesses, by a 'congregation' [i.e., a full Beth din of twenty three], and after a warning, which warning must have stated that he 'was liable to death at the hands of Beth din. R. Judah said: They [the witnesses] must have informed him by which death he would be executed.6 The first Tanna deduces his ruling from 'the gatherer [of sticks', who had not been warned how he would be executed, but was nevertheless stoned]. Whereas R. Judah maintains that 'the gatherer' [was executed] on an ad hoc decision.7
IF CRIMINALS CONDEMNED TO STONING [BECAME MIXED UP] WITH OTHERS CONDEMNED TO BURNING. R. Ezekiel taught his son Ram: If criminals condemned to burning [became mixed up] with others condemned to stoning — R. Simeon said, they are stoned, because burning is severer. Thereupon Rab Judah said to him, 'Father, teach it not thus: Why state the reason because burning is severer? This follows from the fact that the majority are for stoning.'8 How then should I teach it'? The son replied, 'Thus: IF CRIMINALS CONDEMNED TO STONING [BECAME MIXED UP] WITH OTHERS CONDEMNED TO BURNING, — R. SIMEON SAID, THEY ARE STONED, BECAUSE BURNING IS SEVERER.' If so, consider the second clause, BUT THE SAGES SAY, THEY ARE BURNED, BECAUSE STONING IS MORE SEVERE. But does it not follow from the fact that the majority are to be burnt? — There the Rabbis oppose R. Simeon: You say, burning is severer; but that is not so, for stoning is severer.9
Samuel said to Rab Judah: You keen scholar,10
Original footnotes renumbered.
- The calf is the product of a cow and an ox, but the ox is permitted; therefore, on the latter view, even if conceived after sentence, it should still be permitted.
- In this case it is forbidden, not because it is the product of its mother, but because before birth it is part and parcel of its mother, and the prohibition of the latter applies to the embryo too.
- For each culprit must have been warned, and presumably, the warning had stated to which manner of death he would be liable. Since the Mishnah rules that they are all executed by the most lenient death, it follows that the warning in respect of a particular death is regarded as a warning in respect of an easier death too. Otherwise, they could not be executed.
- I.e., the culprit had been warned that he was liable to death, but not of the manner of execution.
- I.e., excluding a mesith, who requires no warning.
- Tosef. Sanh. XI.
- V. p. 527, n. 8.
- For 'if criminals condemned to burning became mixed up with others condemned to stoning' implies that the latter were in the majority, as the smaller number is lost (i.e., 'mixed up') in the larger.
- But their ruling could be deduced from the fact that the majority are to be burnt.
- Others translate: 'man of long teeth'.