Now, a tanna recited [this Baraitha] before R. Shesheth. whereupon he observed: I learned. 'R. Simeon said, [if a man be found stealing a person] from his brethren, [implies that he is not liable unless he] withdraws him from the control of his brethren, [i.e., relations].' yet you say that he is liable!1 Read [instead], 'He is exempt.' But what difficulty is this: perhaps the latter is R. Simeon's view [only]. and the former the Rabbis'? — You cannot think so, for R. Johanan said: [The author of] an anonymous Mishnah is R. Meir; of an anonymous Tosefta, N. Nehemiah; of an anonymous [dictum in the] Sifra, R. Judah; in the Sifre, R. Simeon;2 and all are taught according to the views of R. Akiba.3
IF HE ABDUCTS HIS OWN SON, etc. What is the reason of the Rabbis? — Abaye answered, The Writ saith, If a man be found [stealing any of his brethren etc.] thus excluding one [sc. the victim] who is [ever] to be found [with him].4 R. Papa said to Abaye: If so, [when Scripture saith,] If a man be found lying with a woman married to a husband,5 will you also interpret, 'If [a man] be found, as excluding [a woman] who is immediately accessible [i.e., 'found with him']: e.g., in the house of so and so,6 where [the women] are within easy reach,7 are they [their lovers] exempt? — He replied: I deduce it from [And he that stealeth a man, and selleth him,] and he be found in his hand.8 Raba said: Therefore, the instructors of children and teachers of students are [regarded] as having their charges ready to hand, and hence are not punished [for abducting them].
IF HE KIDNAPPED A SEMI-SLAVE AND SEMI-FREEMAN, etc. We learnt elsewhere: R. Judah said: Slaves have no claim for shame.9 What is R. Judah's reason? — The Writ saith, When men strive together, a man with his brother,10 teaching that this applies only to] one who has fraternal relationship, thus excluding a slave, who has no fraternal relationship.11 But the Rabbis maintain: He [the slave] is his brother in [obligation to fulfil] the [Divine] precepts. Now, in this case [abduction], how is the verse interpreted? — R. Judah maintains, [If a man be found stealing any of his brethren of the children of Israel:] of his brethren excludes slaves; the children of Israel excludes a semi-slave, and a semi-freeman; of the children of Israel12 likewise excludes one who is a semi-slave and semi-freeman.13 Thus, one limitation follows another, which always indicates extension.14 But the Rabbis do not agree that of his brethren excludes slaves, since they are his brethren [in obligation to fulfil] the [Divine] precepts; [whilst as for the double limitation implied in] 'the children of Israel, and of the children of Israel, one excludes a slave, and the other excludes a semi-slave and semi-freeman.15
Whence do we learn a formal prohibition16 against abduction?17 — R. Josiah said: From Thou shalt not steal.18 R. Johanan said: From They shall not be sold as bondsmen.19 Now, there is no dispute: one Master states the prohibition for stealing [i.e., abduction], the other Master for selling [the kidnapped person].
Our Rabbis taught: Thou shalt not steal. — 20 Scripture refers to the stealing of human beings. You say, Scripture refers to the stealing of human beings; but perhaps it is not so, the theft of property [lit., 'money'] being meant? — I will tell you: Go forth and learn from the thirteen principles whereby the Torah is interpreted. [one of which is that] a law is interpreted by its general context: of what does the text speak? of [crimes involving] capital punishment: hence this too refers [to a crime involving] capital punishment.21
Another [Baraitha] taught: Ye shall not steal:22 The Writ refers to theft of property. You say thus, but perhaps it is not so, Scripture referring to the theft of human beings? — I will tell you: Go forth and learn from the thirteen principles whereby the Torah is interpreted,[one of which is that] a law is interpreted by its general context. Of what does the text speak? of money matters;23 therefore this too refuse to a money [theft].
It has been stated: If the witnesses of the abduction or those of the sale of human being were proved zomemim,24 — Hezekiah said: They are not executed; R. Johanan maintained that they are. Now Hezekiah's ruling agrees with the view of R. Akiba, viz., [At the the mouth of two witnesses, or at the mouth of three witnesses, shall] the matter [be established]:25 the whole matter, but not half of the matter;26 whilst R. Johanan's view agrees with that of the Rabbis, viz., the matter implies even half the matter.27 Yet Hezekiah admits in the case of a 'stubborn and rebellious' son, that if the last witnesses were contradicted, they are executed, since the first could say,
Sanhedrin 86b'We came [merely] to have him flogged', and therefore these last witnesses attest the whole offence [involving execution].1 R. Papa objected: If so, the witnesses of the sale [of the abducted person] should likewise be executed, since those of abduction can say, 'We came [merely] to have him flogged':2 nor could you answer3 that Hezekiah is of the opinion that [the abductor] is not flogged,2 — since it has been stated: If the witnesses of abduction were proved zomemim — R. Johanan, and Hezekiah [differ]: one maintains that they are flagellated, the other that they are not. Whereon we observed, It may be shewn that it was Hezekiah who ruled that they are flagellated, since he said that they are not executed.4 For were it R. Johanan, since however he maintains that they are executed, their injunction5 is one for which a warning of death at the hands of Beth din may be given,6 and for such there is no flagellation.7 But if he [the accused] is not flagellated, how can they [the false witnesses] be?8 But R. Papa said thus: All agree that the witnesses of the sale [who were proved zomemim] are slain; they differ only with respect to the witnesses of abduction: Hezekiah maintains that they are not executed, abduction being one offence, and selling another;9 whilst R. Johanan holds that they are executed, abduction being the first step towards selling.10 But R. Johanan admits that if the first witnesses of a 'stubborn and rebellious' son are proved zomemim, they are not executed, since they can say, 'We came to have him flogged'.
Abaye said: All agree in [one matter relating to] a 'stubborn and rebellious son'; and all agree in [a second relating to] a 'stubborn and rebellious son'; and there is a dispute [in the case of] a 'stubborn and rebellious' son. [Thus:] 'All agree in [one matter relating to] a "stubborn and rebellious" son, viz., with respect to the first witnesses [proved zomemim], that they are not slain, since they can plead, 'We came to have him flagellated.' 'And all agree in a second matter relating to a "stubborn and rebellious" son,' viz., with respect to the last witnesses, that they are executed, for since the first witnesses could plead. 'We came to have him flogged,' these attest the entire offence [involving death]. And there is a dispute in [the case of] a 'stubborn and rebellious son,' viz., when two testify that he stole, and two that he ate.11
R. Assi said: If the witnesses of the sale of an [abducted] person are proved zomemim, they are not executed, since the [vendor] could plead, 'l sold my slave.'12 R. Joseph said: With whom does this dictum of R. Assi agree? — With R. Akiba, who ruled 'the whole matter, but not half the matter.' Abaye said to him, For on the view of the Rabbis they would be executed? But he gives his reason, 'since etc.'13 Hence it may agree even with the Rabbis, providing there were no witnesses of abduction. If so, why state it?14 — It is necessary [to state this] only if witnesses [of abduction] subsequently appeared.15 But even so, why state it? — This is necessary only when they made signs [to each other:]16 I might think that signalling is of consequence; therefore he [R. Assi] informs us that it is of no consequence.
MISHNAH. 'AN ELDER REBELLING AGAINST THE RULING OF BETH DIN' [IS STRANGLED],17 FOR IT IS WRITTEN IF THERE ARISE A MATTER TOO HARD FOR THEE FOR JUDGEMENT [etc.].18 THREE COURTS OF LAW WERE THERE,19 ONE SITUATE AT THE ENTRANCE TO THE TEMPLE MOUNT,20 ANOTHER AT THE DOOR OF THE [TEMPLE] COURT,21 AND THE THIRD IN THE HALL OF HEWN STONES.22 THEY23 [FIRST] WENT TO THE BETH DIN WHICH IS AT THE ENTRANCE TO THE TEMPLE MOUNT, AND HE [THE REBELLIOUS ELDER] STATED, THUS HAVE I EXPOUNDED AND THUS HAVE MY COLLEAGUES EXPOUNDED; THUS HAVE I TAUGHT, AND THUS HAVE MY COLLEAGUES TAUGHT. IF [THIS FIRST BETH DIN] HAD HEARD [A RULING ON THE MATTER], THEY STATE IT. IF NOT, THEY GO TO THE [SECOND BETH DIN] WHICH IS AT THE ENTRANCE OF THE TEMPLE COURT, AND HE DECLARES, THUS HAVE I EXPOUNDED AND THUS HAVE MY COLLEAGUES EXPOUNDED; THUS HAVE I TAUGHT AND THUS HAVE MY COLLEAGUES TAUGHT. IF [THIS SECOND BETH DIN] HAD HEARD [A RULING ON THE MATTER]. THEY STATE IT; IF NOT, THEY ALL PROCEED TO THE GREAT BETH DIN OF THE HALL OF HEWN STONES WHENCE INSTRUCTION ISSUED TO ALL ISRAEL, FOR IT IS WRITTEN, [WHICH THEY] OF THAT PLACE WHICH THE LORD SHALL CHOOSE [SHALL SHEW THEE].24 IF HE RETURNED TO HIS TOWN AND TAUGHT AGAIN AS HERETOFORE, HE IS NOT LIABLE. BUT IF HE GAVE A PRACTICAL DECISION, HE IS GUILTY, FOR IT IS WRITTEN, AND THE MAN THAT WILL DO PRESUMPTUOUSLY,25 [SHEWING] THAT HE IS LIABLE ONLY FOR A PRACTICAL RULING. BUT IF A DISCIPLE26 GAVE A PRACTICAL DECISION [OPPOSED TO THE BETH DIN], HE IS EXEMPT:27 THUS THE VERY STRINGENCY OF HIS [ORDINATION] IS [A SOURCE OF] LENIENCY FOR HIM.28
GEMARA. Our Rabbis taught: If a thing be outstandingly difficult [yippale] for thee29
- To Next Folio -