daytime. In non-capital cases the verdict, whether of acquittal or of con¬ viction, may be reached the same day; in capital cases a verdict of acquittal may be reached on the same day, but a verdict of conviction not until the following day. Therefore trials may not be held on the eve of a Sabbath or on the eve of a Festival-day.2 2. In non-capital3 cases concerning uncleanness and cleanness [the judges declare their opinion] beginning from the eldest, but in capital cases they begin from [them that sit at] the side. All [of the family stocks]4 are qualified to try non-capital cases; but all are not qualified to try capital cases, but only priests, levites, and Israelites that may give [their daughters] in marriage into the priestly stock.
3. The Sanhedrin was arranged like the half of a round threshing-floor so that they all might see one another. Before them stood the two scribes of the judges, one to the right and one to the left, and they wrote down the words of them that favoured acquittal and the words of them that favoured conviction. R. Judah says: There were three: one wrote down the words of them that favoured acquittal, and one wrote down the words of them that favoured conviction, and the third wrote down the words both of them that favoured acquittal and of them that favoured conviction.
4. Before them sat three rows of disciples of the Sages, and each knew his proper place. If they needed to appoint [another as a judge], they appointed him from the first row, and one from the second row came into the first row, and one from the third row came into the second; and they chose yet another from the congregation and set him in the third row. He did not sit in the place of the former, but he sat in the place that was proper for him.
5. How did they admonish the witnesses in capital cases? They brought them in and admonished them, [saying,] ‘Perchance ye will say what is but supposition or hearsay or at secondhand, or [ye may say in yourselves]. We heard it from a man that was trustworthy. Or perchance ye do not know that we shall prove you by examination and inquiry? Know ye, moreover, that capital cases are not as non-capital cases: in non-capital 1 Even disciples of the Sages (see 4*, 5*) who are not among the judges.
388 FOURTH DIVISION: NEZIKIN cases a man may pay money and so make atonement, but in capital cases the witness is answerable for the blood of him [that is wrongfully con¬ demned] and the blood of his posterity [that should have been born to him] to the end of the world. For so have we found it with Cain that slew his brother, for it is written, The bloods of thy brother cry.1 It says not ‘The blood of thy brother’, but The bloods of thy brother — his blood and the blood of his posterity. (Another- saying is: Bloods 3 of thy brother — because his blood was cast over the trees and stones.) Therefore but a single man was created in the world, to teach that if any man has caused a single soul to perish from Israel4 Scripture imputes it to him as though he had caused a whole world to perish; and if any man saves alive a single soul from Israel4 Scripture imputes it to him as though he had saved alive a whole world. Again [but a single man was created] for the sake of peace among mankind, that none should say to his fellow, ‘My father was greater than thv father’; also that the heretics should not say, ’There are many ruling powers in heaven’. Again [but a single man was created] to proclaim the greatness of the Holy One, blessed is he; for man stamps many coins with the one seal and they are all like one another; but the King of kings, the Holy One, blessed is he, has stamped every man with the seal of the first man, yet not one of them is like his fellow. Therefore every one must say, For my sake was the world created. And if perchance ye would say, Why should we be at these pains? — was it not once written, He being a vntness, whether he hath seen or known, [if he do not utter it, then shall he bear his iniquity ]?5 And if perchance ye would say, Why should we be guilty of the blood of this man? — was it not once written, When the wicked perish there is rejoicing? ’6 5. i. They used to prove witnesses with seven inquiries: In what week of years?7 In what year? In what month? On what date in the month? On what day? In what hour? In what place? (R. Jose says: [They asked only,] On what day? In what hour? In what place?) [Moreover they asked:] Do ye recognize him? Did ye warn him? If a man had committed idolatry [they asked the witnesses], What did he worship? and, How did he worship it?
2. The more a judge tests the evidence the more is he deserving of praise: Ben Zakkai once tested the evidence even to the inquiring about the stalks of figs. Wherein do the inquiries differ from the cross-examination? If to the inquiries one [of the two witnesses] answered, ‘I do not know’, their evidence becomes invalid; but if to the cross-examination one answered, ‘I do not know’, or if they both answered, ‘We do not know’, their evidence remains valid. Yet if they contradict one another, whether during the inquiries or the cross-examination, their evidence becomes invalid.
3. If one said, ‘On the second of the month’, and the other said, ‘On the third’, their evidence remains valid, since one may have known that the month was intercalated8 and the other did not know that the month was intercalated; but if one said, ‘On the third’, and the other said, ‘On the fifth’, their evidence becomes invalid. If one said, ‘At the second hour’, and the other said, ‘At the third’, their evidence remains valid; but if one said, ‘At the third hour’, and the other said, ‘At the fifth’, their evidence 1 An interpolated Haggadah. Cf. App- I. so. 4 Some texts omit ’from Israel’.
becomes invalid. R. Judah says: It remains valid; but if one said, ‘At the fifth hour’, and the other said, ‘At the seventh’, their evidence becomes in¬ valid since at the fifth hour the sun is in the east and at the seventh it is in the west.
4. They afterward brought in the second witness and proved him. If their words were found to agree together they begin [to examine the evidence] in favour of acquittal. If one of the witnesses said, ‘I have some¬ what to argue in favour of his acquittal’, or if one of the disciples said, ‘I have somewhat to argue in favour of his conviction’, they silence him. If one of the disciples said, ‘I have somewhat to argue in favour of his acquittal’, they bring him up and set him among them and he does not come down from thence the whole day. If there is aught of substance in his words they listen to him. Even if the accused said, ‘I have somewhat to argue in favour of my acquittal’, they listen to him, provided that there is aught of substance in his words.
5. If they found him innocent they set him free; otherwise they leave his sentence over until the morrow. [In the meantime] they went together in pairs, they ate a little (but they used to drink no wine the whole day), and they discussed the matter all night, and early on the morrow they came to the court. He that favoured acquittal says: ‘I declared him innocent [yesterday] and I still declare him innocent’; and he that favoured con¬ viction says, ‘I declared him guilty [yesterday] and I still declare him guilty’. He that had favoured conviction may now acquit, but he that had favoured acquittal may not retract and favour conviction. If they erred in the matter the scribes of the judges must put them in remembrance. If they [all] found him innocent they set him free; otherwise they decide by vote. If twelve favour acquittal and eleven favour conviction, he is declared inno¬ cent; if twelve favour conviction and eleven favour acquittal, or even if eleven favour acquittal and eleven favour conviction and one says, ‘I do not know’, or even if twenty-two favour acquittal or favour conviction and one says, ‘I do not know’, they must add to the number of judges. Up to what number may they add to them? By two at a time up to one and seventy. If then thirty-six favour acquittal and thirty-five favour conviction, he is declared innocent; if thirty-six favour conviction and thirty-five favour acquittal, they debate one with another until one of them that favoured conviction approves of the words of them that favour acquittal.
6. 1. When sentence [of stoning] has been passed they take him forth to stone him. The place of stoning was outside [far away from] the court, as it is written. Bring forth him that hath cursed vhthout the camp.1 One man stands at the door of the court with a towel in his hand, and another, mounted on a horse, far away from him [but near enough] to see him. If [in the court] one said, ‘I have somewhat to argue in favour of his acquittal’, that man waves the towel and the horse runs and stops him [that was going forth to be stoned]. Even if he himsel f said, ‘I ha ve somewhat to argue in favour of my acquittal’, they must bring him back, be it four times or five, pro¬ vided that there is aught of substance in his words. If then they found him innocent they set him free; otherwise he goes forth to be stoned. A herald goes out before him [calling], ‘Such-a-one, the son of such-a-one, is going forth to be stoned for that he committed such or such an offence. Such-a- 390 FOURTH DIVISION: NEZIKIN one and such-a-one are witnesses against him. If any man knoweth aught in favour of his acquittal let him come and plead it’.
2. When he was about ten cubits from the place of stoning they used to say to him, ‘Make thy confession’, for such is the way of them that have been condemned to death to make confession, for every one that makes his confession has a share in the world to come. For so have we found it with Achan. Joshua said to him, My son, give, I pray thee, glory to the Lord, the God of Israel, and make confession unto him, and tell me note what thou hast done; hide it not from me. And Achan answered Joshua and said, Of a truth I have sinned against the Lord, the God of Israel, and thus and thus have I done.1 Whence do we learn that his confession made atonement for him? It is written, And Joshua said, Why hast thou troubled us? the Lord shall trouble thee this day1 — this day thou shalt be troubled, but in the world to come thou shalt not be troubled. If he knows not how to make his confession they say to him, ‘Say, May my death be an atonement for all my sins’. R. Judah says: If he knew that he was condemned because of false testi¬ mony he should say, ‘Let my death be an atonement for all my sins excepting this sin’. They said to him: If so, every one would speak after this fashion to show his innocence.
3. When he was four cubits from the place of stoning they stripped off his clothes. A man is kept covered in front and a woman both in front and behind. So R. Judah. But the Sages say: A man is stoned naked but a woman is not stoned naked.
4. The place of stoning was twice the height of a man. One of the witnesses knocked him down on his loins; if he turned over on his heart the witness turned him over again on his loins. If he straightway died that sufficed; but if not, the second [witness] took the stone and dropped it on his heart. If he straightway died, that sufficed; but if not, he was stoned by all Israel, for it is written, The hatui of the witnesses shall be first upon him to put him to death and afterward the hand of all the people.3 All that have been stoned must be hanged. So R. Eliezer. But the Sages say: None is hanged save the blasphemer and the idolator. A man is hanged with his face to the people and a woman with her face towards the gallows. So R. Eliezer. But the Sages say: A man is hanged but a woman is not hanged. R. Eliezer said to them: Did not Simeon ben Shetah4 hang women in Ashkelon? They answered: He hanged eighty women, whereas two ought not to be judged in the one day. How did they hang a man? They put a beam into the ground and a piece of wood jutted from it. The two hands [of the body] were brought together and [in this fashion] it was hanged. R. Jose says: The beam was made to lean against a wall and one hanged the corpse thereon as the butchers do. And they let it down at once: if it remained there overnight a negative command is thereby transgressed, for it is written, His body shall not remain all night upon the tree, but thou shalt surely bury him the same day; for he that is hanged is a curse against 5 God;6 as if to say: Why was this one hanged? Because be blessed7 the Name, and the Name of Heaven was found profaned.
5. R. Meir8 said: When man is sore troubled, what says the Shekinah?9 7 Euphemism for 'cursed'. Some texts read ‘cursed’.
1 The passage that follows is an interpolated Haggadah.
9 Some texts here omit ‘the Shekinah, the divine presence.
My head1 is ill at ease, my arm is ill at ease. If God is sore troubled at the blood of the ungodly that is shed, how much more at the blood of the righteous? Furthermore, every one that suffers his dead to remain over¬ night transgresses a negative command; but if he had suffered it to remain by reason of the honour due to it, to bring for it a coffin and burial clothes, he does not thereby commit transgression. They used not to bury him in the burying-place of his fathers, but two burying-places were kept in readi¬ ness by the court, one for them that were beheaded or strangled, and one for them that were stoned or burnt.
6. When the flesh had wasted away they gathered together the bones* and buried them in their own place.3 [After he was put to death] the kins¬ men came and greeted the judges and the witnesses as if to say, ‘We have naught against you in our hearts, for ye have judged the judgement of truth’. And they used not to make [open] lamentation4 but they went mourning, for mourning has place in the heart alone.
7. 1. The court had power to inflict four kinds of death-penalty: stoning, burning, beheading, and strangling. R. Simeon says: [Their order5 of gravity is] burning, stoning, strangling, and beheading. This is the ordin¬ ance of them that are to be stoned.
2. The ordinance of them that are to be burnt [is this]: they set him in dung up to his knees and put a towel of coarse stuff within one of soft stuff and wrapt it around his neck; one [witness] pulled one end towards him and the other pulled one end towards him until he opened his mouth; a wick* was kindled and thrown into his mouth, and it went down to his stomach and burnt his entrails. R. Judah says: If thus he died at their hands they would not have fulfilled the ordinance of burning; but, rather, they must open his mouth with tongs by force and kindle the wick6 and throw it into his mouth, and it goes down to his stomach and burns his entrails. R. Eliezer b. Zadok said: It happened once that a priest’s daughter7 com¬ mitted adultery and they encompassed her with bundles of branches and burnt her. They said to him: Because the court at that time had not right knowledge.8 3. The ordinance of them that are to be beheaded [is this]: they used to cut off his head with a sword as the government9 does. R. Judah says: This is shameful for him; but, rather, they lay his head on a block and cut it off with an axe. They said to him: There is no death more shameful than this. The ordinance of them that are to be strangled [is this]: they set him in dung up to his knees and put a towel of coarse stuff within one of soft stuff and wrapt it around his neck; one [witness] pulled one end towards him and the other pulled one end towards him, until his life departed.
4. These are they that are to be stoned: he that has connexion with his mother, his father’s wife, his daughter-in-law, a male, or a beast, and the woman that suffers connexion with a beast, and the blasphemer and the idolator, and he that offers any of his seed to Molech, and he that has a familiar spirit and the soothsayer, and he that profanes the Sabbath, and 1 Some texts here prefix: ‘If it could be said’, a formula commonly used to apologize for some anthropomorphism. There are many textual variants at this point.
s Descending order of severity. See below, 9*, * This is the common meaning of the word. According to the Gemara (52a) it was a strip of lead. 1 Lev. 21*. * It was (Gem. 52b) a court made up of Sadducees.
* The Romans. The victim was beheaded standing.
392 FOURTH DIVISION: NEZIKIN he that curses his father or his mother, and he that has connexion with a girl that is betrothed, and he that beguiles [others to idolatry], and he that leads [a whole town] astray, and the sorcerer and a stubborn and rebellious son.1 He that has connexion with his mother is thereby culpable both by virtue of the law of the mother2 and of the father's wife.3 R. Judah savs: He is culpable by virtue of the law of the mother only. He that has con¬ nexion with his father’s wife is thereby culpable both by virtue of the law of the father’s wife and of another man’s wife,4 whether in his father’s lifetime or after his father’s death, whether after betrothal [only] or after wedlock. He that has connexion with his daughter-in-law is thereby culpable both by virtue of the law of the daughter-in-law5 and of another man’s wife, whether in his son’s lifetime or after his son’s death, whether after betrothal [only] or after wedlock. He that has connexion with a male or with a beast, and she that suffers connexion with a beast, [their death is] bv stoning.6 If it is the man that has sinned how has the beast sinned? But inasmuch as an offence has befallen a man by reason of it, therefore Scripture has said that it shall be stoned. Another saying is: Lest the beast should go through the market and they say, This is the beast by reason of which such-a-one was stoned.
5. ‘The blasphemer’7 is not culpable unless he pronounces the Name itself.8 R. Joshua b. Karha says: On every day [of the trial] they examined the witnesses with a substituted name, [such as] ‘May Jose smite Jose’. When sentence was to be given they did not declare him guilty of death [on the grounds of evidence given] with the substituted name, but they sent out all the people and asked the chief among the witnesses and said to him, ‘Say expressly what thou heardest’, and he says it; and the judges stand up on their feet and rend their garments, and they may not mend them again. And the second witness says, ‘I also heard the like’, and the third says, ‘I also heard the like’.
6. ‘The idolator’ [is culpable] no matter whether he worships or sacri¬ fices or burns incense or pours out a libation or bows himself down to it or accepts it as his god or says to it, Thou art my god. But he that puts his arms around it or kisses it or sweeps it or besprinkles it or wrashes it or anoints it or clothes it or shoes it transgresses [only] a negative command.9 He that makes a vow in its name or takes an oath in its name transgresses a negative command.10 But if a man excretes to Baal Peor11 [he is to be stoned, because] this is how it is worshipped. He that throws a stone at a Merkolis 12 [is to be stoned, because] this is how it is worshipped.
7. ‘He that offers any of his seed to Molech’13 is not culpable unless he gives up [the child] to Molech and passes him through the fire: if he gave him up to Molech but did not pass him through the fire, or if he passed him through the fire but did not give him up to Molech, he is not culpable; he must both give him up to Molech and pass him through the fire. ‘He that 1 Cf. the list in Ker. i1, where, for many of these, ‘Extirpation’, punishment at the hands of Heaven, is prescribed. Stoning was inflicted if the act was done after warning and in the presence of witnesses and deliberately; if it was done unwittingly the penalty is a Sin- offering (Lev. 4”*).
II N’um. 2$*- *; Deut. 4’; Hos. 9'*. The meaning of the root of ‘Peor’ is ‘open wide’.
12 Mercurius, the Greek Hermes. See A.Zar. 4’. The ‘Merkolis’ was a pillar surmounted by the head of Hermes. In this guise he was the patron deity of wayfarers.
has a familiar spirit’1 (such is the Python which speaks from his armpits), ‘and the soothsayer’2 (such is he that speaks with his mouth), these are [to be put to death] by stoning, and he that inquires of them transgresses against a warning.3 8. ‘He that profanes the Sabbath’4 [is liable, after warning, to death by stoning] if he committed an act which renders him liable to Extirpation5 if he acted wantonly, or to a Sin-offering6 if he acted in error. ‘He that curses his father or his mother’7 is not culpable unless he curses them with the Name.8 If he cursed them with a substituted name R. Meir declares him culpable but the Sages declare him not culpable.
9. ‘He that has connexion with a girl that is betrothed’6 is not culpable unless she is still in her girlhood,10 and a virgin, and betrothed, and still in her father’s house. If two had connexion with her the first is [liable to death] by stoning, but the second [only] by strangling.
10. ‘He that beguiles [others to idolatry]’ — such is a common man11 that beguiles another common man.12 If he said to another, ‘There is a god in such a place that eats this, drinks that, does good in this way and does harm in that way’ — they may not place witnesses in hiding against any that become liable to the death-penalties enjoined in the Law save in this case alone. If he spoke [after this fashion] to two, and they are such that can bear witness against him,13 they bring him to the court and stone him. If he spoke so to one only he may reply, ‘ I have companions that are so minded’; and if the other was crafty and would not speak before them, witnesses may be placed in hiding behind a wall. Then he says to the other, ‘Say [again] what thou didst say to me in private’, and the other speaks to him [as before] and he replies, ‘How shall we leave our God that is in Heaven and go and worship wood and stone?’ If he retracted it shall be well with him, but if he said, ‘It is our duty and it is seemly so to do’, they that are behind the wall bring him to the court and stone him. If a man said, ‘I will worship [another god]’ or ‘I will go and worship it’ or ‘Let us go and worship it’, or ‘I will sacrifice to it’ or ‘I will go and sacrifice to it’ or ‘Let us go and sacrifice to it’, or ‘I will burn incense to it’ or ‘I will go and burn incense to it’ or ‘Let us go and burn incense to it’, or ‘I will make a libation to it’ or ‘I will go and make a libation to it’ or ‘Let us go and make a libation to it’, or ‘I will bow myself down before it’ or ‘I will go and bow myself down before it’ or ‘Let us go and bow ourselves down before it’, [such a one is culpable]. ‘He that leads [a whole town] astray’14 is he that says, ‘Let us go and worship idols’.
11. ‘The sorcerer’IS — he that performs some act is culpable, and not he that [only] deceives the eyes. R. Akiba in the name of R. Joshua says: If two were gathering cucumbers [by sorcery] one gatherer may not be culp¬ able and the other gatherer may be culpable: he that [indeed] performed the act is culpable, but he that [only] deceived the eyes is not culpable.
1 Lev. 20*7. It is rendered 'pythonicus’ by the Vulgate.
* Heb. yidd'oni. He used to put the bone of the yaddu'a (a wild beast or a bird) in his mouth and it spoke of itself (Gem. 65b). 3 Lev. 19*1, or Deut. i8u.
* With any of the special names of God. Cf. Shebu. 4”.
10 Between the ages of twelve and twelve and a half. Cf. Nidd, 5*- 7.
" Deut. 13*"“, and not a false prophet (Deut. 13* *) who is punishable by strangling. See below, u5. And not a whole town. 13 Are not near of kin.
394 FOURTH DIVISION: NEZIKIN 8. i. ‘A stubborn and rebellious son’1 — when can he be condemned as a stubborn and rebellious son? From the time that he can produce two hairs2 until he grows a beard (the lower one and not the upper one [is meant]; howbeit the Sages spoke in modest language), for it is written. If a man have a son; — a son and not a daughter, a son and not a man; a minor3 is exempt since he has not yet come within the scope of the commandments.