2. When is he culpable? After he has eaten a tritimor 4 of flesh and drunk a half-/og5 of Italian wine. R. Jose says: A mina 4 of flesh and a log of wine. If he consumed it at a gathering that was a religious duty,6 or at the inter¬ calation of the month,7 or if he consumed it as Second Tithe in Jeru¬ salem,8 or if he ate carrion9 or flesh that was terefah 10 or forbidden beasts" or creeping things,12 if by consuming it he had fulfilled a command or had committed a transgression, if he ate any foodstuff but did not eat flesh, or drank any liquid but did not drink wine, he cannot be condemned as a stubborn and rebellious son; but only if he eats flesh and drinks wine, for it is written, A glutton and a drunkard. 1 3 And though there is no proof for this, there is an indication,14 for it is written, Be not among tvinebibbers; among gluttonous eaters of flesh. 1 5 3. If he stole it from his father and ate it in his father’s domain, or from others and ate it in the others’ domain, or from others and ate it in his father’s domain, he cannot be condemned as a stubborn and rebellious son; but only if he steals from his father and eats it in the others’ domain. R. Jose the son of R. Judah says: Only if he steals from his father and from his mother.
4. If his father was willing [to accuse him] but his mother was not willing, or if his father was not willing but his mother was willing, he cannot be condemned as a stubborn and rebellious son; but only if they both were willing. R. Judah says: If his mother was not fit for his father he cannot be condemned as a stubborn and rebellious son. If either of them was maimed in the hand, or lame or dumb or blind or deaf, he cannot be con¬ demned as a stubborn and rebellious son, for it is written, Then shall his father and his mother lay hold on him — so they were not maimed in the hand; and bring him out — so they were not lame; and they shall say — so they were not dumb; this our son — so they were not blind; he loill not obey our voice — so they were not deaf. They must warn him, and scourge him before three [judges]. If he again behaved evilly he must be tried before three and twenty [judges]; and he may only be stoned if the first three are there, for it is written, This our son, to wit, this is he that was beaten before you. If he ran away before sentence was passed on him and afterward grew the lower beard, he is exempt; but if he ran away after sentence was passed on him and afterward grew the lower beard, he is still liable.
5. A stubborn and rebellious son is condemned because of [what he may become in] the end: the Law has said,16 Let him die innocent and let him not die guilty; for the death of the ungodly is a benefit to them and a 1 Deut. 2 Cf. Nidd. 6". J A boy under thirteen years and a day.
10 Ex. 2zJ1; cf. App. II. 47. ” Lev. ti‘s.
12 Lev. 1 i*,f. Some texts here add: 'or if he consumed untithed produce or First Tithe from which Heave-offering had not been taken, or Second Tithe or dedicated produce that had not been redeemed’. On these see p. 7, nn. 6-9.
16 Some texts omit ‘The Law has said’.
benefit to the world, but the death of the righteous is a misfortune to them and a misfortune to the world. The wine and sleep of the ungodly are a benefit to them and a benefit to the world, but the wine and sleep of the righteous are a misfortune to them and a misfortune to the world. The dispersion of the ungodly is a benefit to them and a benefit to the world, but the dispersion of the righteous is a misfortune to them and a misfortune to the world. The gathering together of the ungodly is a misfortune to them and a misfortune to the world, but the gathering together of the righteous is a benefit to them and a benefit to the world. Peacefulness for the ungodly is a misfortune to them and a misfortune to the world, but peacefulness for the righteous is a benefit to them and a benefit to the world.1 6. The thief that is found breaking through2 is condemned because of [what he may do in] the end. If in his breaking through he broke a jar and there would be hloodguiltiness [if the householder killed him],3 he is liable [to make restitution]; if there would be no bloodguiltiness he is exempt.4 7. These may be delivered [from transgression] at the cost of their lives: he that pursues after his fellow to kill him, or after a male, or after a girl that is betrothed; but he that pursues after a beast, or that profanes the Sabbath, or that commits idolatry — they may not be delivered [from trans¬ gression] at the cost of their lives.
9. 1. And these are they that are to be burnt: he that has connexion with a woman and her daughter,5 and the daughter of a priest that has committed adultery.6 Under the law of ‘a woman and her daughter* falls also [any case wherein a man has connexion with] his daughter or his daughter’s daughter, or his son’s daughter or his wife’s daughter, or her daughter’s daughter, or her son’s daughter, or his mother-in-law, his mother-in-law’s mother, or his father-in-law’s mother. And these are they that are to be beheaded: the murderer7 and the people of an Apostate City.8 If a murderer had struck his fellow with a stone or with [an instrument of] iron, or if he had pressed him down into the water or into the fire and he could not arise out of it, and he died, he is culpable. If he pushed him [and he fell] into the water or into the fire and he could arise out of it, and yet he died, he is not culpable. If he had incited a dog against him or had incited a serpent against him, he is not culpable. If he caused the serpent to bite him R. Judah declares him culpable, but the Sages declare him not culpable. If a man struck his fellow, whether with a stone or with the fist, and they considered him like to die, and he then grew better and afterward grew worse and died, he is culpable. R. Nehemiah declares him not culpable, since there is proof whereon to rely [for believing that there was some other cause of death].9 2. If he had intended to kill a beast and killed a man, or a gentile and killed an Israelite, or an untimely birth and killed offspring that was like to live, he is not culpable. If he had intended to strike a man on the loins a blow that on the loins was not enough to cause death, but it lighted upon his heart and it was a blow that on the heart was enough to cause death, and he died, he is not culpable. If he intended to strike a man on the heart 1 In his silence the ungodly meditates mischief but the righteous ponders words of the Law. 1 Ex. 2i*°. J ‘If the sun be risen upon him’.
* From making restitution, since he incurred the graver penalty of death. For the principle see Ket. 3*; B.K. 3** (end). s Lev. 18”.
396 FOURTH DIVISION: NEZIKIN a blow that on the heart was enough to cause death, but it lighted upon his loins and it was a blow that on the loins was not enough to cause death, and yet he died, he is not culpable. If he had intended to strike a grown man a blow that was not enough to cause death to a grown man, but it lighted upon a child and it was a blow that was enough to cause death to a child, and it died, he is not culpable. If he had intended to strike a child a blow that was enough to cause death to a child, but it lighted upon a grown man, and it was a blow' that was not enough to cause death to a grown man, and yet he died, he is not culpable. But if he had intended to strike a man on the loins a blow that on the loins was enough to cause death, and it lighted upon his heart, and he died, he is culpable. If he intended to strike a grown man a blow that was enough to cause death to a grown man, and it lighted upon a child, and it died, he is culpable. R. Simeon says: Even if he had intended to kill one but killed another he is not culpable.
3. If a murderer was confused among others, none of them is culpable. R. Judah says: They are all brought into prison. If men liable to different kinds of death-penalty were confused together, they are to be punished by the more lenient death-penalty. If they that were to be stoned were con¬ fused with them that were to be burnt, R. Simeon says: They must be punished by stoning since burning is the severer death. But the Sages say: They must be punished by burning since stoning is the severer death. R. Simeon said to them: If burning was not the more severe it would not have been prescribed for the daughter of a priest that committed adultery. They said to him: If stoning was not the more severe it would not have been prescribed for the blasphemer and the idolator. If they that were to be beheaded were confused with them that were to be strangled, R. Simeon says: [They must be punished] by the sword. But the Sages say: By strangling.
4. If a man was found liable to two of the death-penalties that can be inflicted by the court, he must be punished by the more severe of them. If he committed a transgression by which he was found liable to two kinds of death-penalty,' he must be punished by the more severe of them. R. Jose says: He must be punished by that penalty which first attaches to his transgression.: 5. If a man w»as scourged [and committed again the same transgression] and was scourged a second time, [if he transgressed a third time] the court must put him in a prison-cell and feed him with barley until his belly bursts. If a man committed murder but there were no witnesses, they must put him in prison and feed him with the bread of adversity and the water of affliction?
6. If a man stole a sacred vessel or cursed by Kosem1 * * 4 or made an Ara- mean woman his paramour,5 the zealots6 may fall upon him. If a priest served [at the Altar] in a state of uncleanness7 his brethren the priests did 1 e.g. intercourse with a mother-in-law who was married to a husband renders him liable to strangulation for transgressing the law respecting a man’s wife, and to burning for transgressing the law respecting a mother and her daughter; therefore he is punished by burning, the severer penalty.
1 If the mother-in-law was a widow, and afterwards married, he suffers under the law of the mother and her daughter. 3 ls. 30“.
4 Of uncertain meaning. Variously explained as the name of a god, or a disguised divine name (e.g. an abbreviation of some such title as KoofxonAdtTTrjs), or a pseudonym for God.
s Cf. Num. as4®. 6 Like Phineas.
i And legally (Makk. 3*) was punishable by scourging only.
not bring him to the court, but the young men among the priests took him outside the Temple Court and split open his brain with clubs.1 If one that was not a priest served in the Temple, R. Akiba says: [He must be put to death] by strangling. But the Sages say: [He shall suffer death] at the hands of Heaven.
10. 1. All Israelites have a share in the world to come, for it is written, Thy people also shall be all righteous, they shall inherit the land for ever; the branch of my planting, the tvork of my hands that I may be glorified.2 And these are they that have no share in the world to come: he that says that there is no resurrection of the dead prescribed in the Law',3 and [he that says] that the Law is not from Heaven, and an Epicurean.4 R. Akiba says: Also he that reads the heretical books,5 or that utters charms over a wound and says, 1 will put none of the diseases upon thee ivhich I have put upon the Egyptians: for I am the Lord that healeth theeP Abba Saul says: Also he that pronounces the Name with its proper letters.7 z. Three kings and four commoners have no share in the world to come. The three kings are Jeroboam and Ahab and Manasseh. R. Judah says: Manasseh has a share in the world to come, for it is written, And he prayed unto him, and he was intreated of him and heard his supplication and brought him again to Jerusalem into his kingdom.* They said to him: He brought him again to his kingdom, but he did not bring him to the life of the world to come. The four commoners are Balaam and Doeg and Ahitophel and Gehazi.
3. The generation of the Flood have no share in the world to come, nor shall they stand in the judgement, for it is written, My spirit shall not judge with man for ever? [thus they have] neither judgement nor spirit. The generation of the Dispersion have no share in the world to come, for it is written, So the Lord scattered them abroad from thence upon the face of all the earth;10 So the Lord scattered them abroad — in this world; arid the Lord scattered them from thence — in the world to come. The men of Sodom have no share in the world to come, for it is written, Now the men of Sodom were wicked and sinners against the Lord exceedingly;M wicked in this world, and sinners in the world to come. But they shall stand in the judgement. R. Nehemiah says: Neither of them shall stand in the judgement, for it is written: Therefore the wicked shall not stand in the judgement nor sinners in the congregation of the righteous. 1 1 Therefore the wicked shall not stand in the judgement — this is the generation of the Flood; nor sinners in the congrega¬ tion of the righteous — these are the men of Sodom. They said to him: They shall not stand in the congregation of the righteous, but they shall stand in the congregation of the ungodly. The spies have no share in the world to come, for it is written, Even those men that did bring up an evil report of the land died by the plague before the Lord;13 died — in this world; by the plague — in the world to come. The generation of the wilderness have no share in 1 Or 'faggots’ (intended for the altar fire). It is the word used in Tam. 21.
Is. ho11. J Some texts omit ‘prescribed in the Law’.
* A frequent epithet applied both to gentiles and Jews opposed to the rabbinical teach¬ ings. It is in no way associated with teachings supposed by the Jews to emanate from the philosopher Epicurus; to Jewish ears it conveys the sense of the root pakar, ‘be free from restraint’, and so licentious and sceptical.
s Lit. ‘external books’, books excluded from the canon of Hebrew Scriptures.
398 FOURTH DIVISION: NEZIKIN the world to come nor shall they stand in the judgement, for it is written, In this wilderness they shall be consumed and there they shall die.1 So R. Akiba. But R. Eliezer says: It says of them also, Gather my saints together unto me, those that have made a covenant with me by sacrifice.1 The company of Korah shall not rise up again, for it is written, And the earth closed upon them,1 in this world, and they perished from among the assembly, in the world to come. So R. Akiba. But R. Eliezer says: It says of them also, The Lord killeth and maketh alive, he bringeth down to Sheol and bringeth up.* The Ten Tribes shall not return again, for it is written, And he cast them into another land like this day.1 Like as this day goes and returns not, so do they go and return not. So R. Akiba. But R. Eliezer says: Like as the day grows dark and then grows light, so also after darkness is fallen upon the Ten Tribes shall light hereafter shine upon them.
4. ‘The people of an Apostate City’ have6 no share in the world to come. For it is written, Certain base fellows are gone out from the midst of thee and have dravm away the inhabitants of their city 7 — they may not be put to death unless the beguilers belong to that same city and that same tribe, and unless the greater part of it has been beguiled, and unless they that beguiled them were men; if women or children beguiled the city, or if the lesser part of it was beguiled, or if they that beguiled it came from elsewhere, they count only as single [idolators],® and for each of them two witnesses and fore¬ warning are required. Herein greater stringency applies to single [idolators] than to the many, for single fidolators are put to death] by stoning, therefore their property is saved; but the many [are put to death] by the sword, therefore their property perishes.
5. Thou shalt surely smite the inhabitants of the city with the edge of the sword 9 — if ass-drivers or camel-drivers were passing through [the city] from place to place, these can deliver it;10 destroying it utterly and all that is therein and the cattle thereof, with the edge of the sword — hence they have said that the property of the righteous therein perishes, but that which is outside is saved, while that of the wicked, whether inside or outside the city, perishes.
6. And thou shalt gather all the spoil of it into the midst of the wide place11 thereof — if it has no open space they must make for it an open space; if the open space was outside, they must bring it inside. And thou shalt bum zoith fire the city and all the spoil thereof, every whit, unto the Lord thy God — the spoil thereof, but not the spoil belonging to Heaven; hence they have said that the dedicated things12 therein must be redeemed, and the Heave- offerings*3 suffered to rot. The Second Tithe14 and the Sacred Scriptures must be hidden away. Every whit unto the Lord thy God — R. Simeon said: The Holy One, blessed is he, said, ‘When ye execute judgement against an Apostate City I will reckon it to you as if ye offered up before me a whole burnt offering’. And it shall be an heap for ever: it shall not be built again — it may not even be made into gardens or orchards. So R. Jose the Galilean.
0 Some texts omit ‘have no share in the world to come’, a phrase which wrongly assimi¬ lates what follows to the section immediately preceding. The present paragraph resumes the subjects summarized in 91, and might be expected to follow after 9*.
7 Deut. 131*. To the end of the chapter the midrash method of treatment is followed. Cf. Sot. 8,fl; 91®. 8 See above, 71*. 7 Deut. 13**.
10 They may serve to make the unperverted into a majority. A variant reading is: ‘These may be delivered'. 1 1 Cf. Taan. 2'; Meg. 3'.
R. Akiba says: It shall not be built again means that it may not be built as it was before, but it may be made into gardens and orchards. And there shall cleave nought of the devoted thing to thine hand; [that the Lord may turn from the fierceness of his anger and show thee mercy and have compassion upon thee and multiply thee] — for so long as the ungodly are in the world, the fierceness of his anger is in the world; after the ungodly are perished from the world, the fierceness of his anger will be removed from the world.
11. 1. These are they that are to be strangled: he that strikes his father or his mother,1 and he that steals a soul from Israel,2 and the elder that rebels against the decision of the court, and the false prophet, and he that prophe¬ sies in the name of a strange god, and he that has connexion with another man’s wife, and the false witnesses against the daughter of a priest and her paramour. ‘He that strikes his father or his mother’ — he is not culpable unless he causes a wound in them. Herein greater stringency applies to him that curses than to him that strikes, for he that curses them after their death is culpable, but he that strikes them after their death is not culpable. ‘He that steals a soul from Israel’ — he is not culpable unless he brings him into his own domain. R. Judah says: Unless he brings him into his own domain and makes use of him, for it is written, And if he deal with him as a slave or sell him.3 If a man stole his own son, R. Ishmael b.4 R. Johanan b. Baroka declares him culpable, but the Sages declare him not culpable. If he stole one that was half bondman and half freedman,5 R. Judah declares him culpable, but the Sages declare him not culpable.
2. ‘The elder that rebels against the decision of the court’ — as it is written, If there arise a matter too hard for thee in judgement, between blood and blood, between plea and plea...6 Three courts were there [in Jerusalem]: one used to sit at the gate of the Temple Mount,7 one used to sit at the gate of the Temple Court,* and one used to sit in the Chamber of Hewn Stone.9 They10 used to come first to the court that was at the gate of the Temple Mount, and the one would say, ‘In this way have I expounded11 and in that way have my fellows expounded; in this way have I taught12 and in that way have my fellows taught’. If they [of that court] had heard a tradition,13 they told it to them; otherwise they betook themselves to them of the court that was at the gate of the Temple Court, and the one would say, ‘In this way have I expounded and in that way have my fellows expounded; in this way have I taught and in that way have my fellows taught’. If they [of that court] had heard a tradition, they told it to them; otherwise they both came in to the Great Court that was in the Chamber of Hewn Stone, whence the Law goes forth to all Israel, as it is written, From that place which the Lord shall choose. 14 If [any one of the elders that went up to Jerusa¬ lem to inquire] returned to his own city and again taught as he was wont to teach, he is not yet culpable; but if he gave a decision concerning what * Some texts omit ‘R. Ishmael b.’
s A slave who had been owned by two jointholders of whom one had set him free.
4 Deut. i7*'u. 7 At the east gate in front of the Court of the Women.
* i.e. the entrance to the Court of the Israelites.
* North of the Court of the Israelites; cf. Midd. 5*.
10 The local court which was in search of guidance.
<■ The Scriptural principle on which the judgement turns.
12 The application of the principle to the case at issue.
13 A ruling handed down by their teachers deciding or bearing upon the special point.
»« Deut. vf*.
400 FOURTH DIVISION: NEZIKIN should be done, he is culpable, for it is written, And the man that doeth presumptuously.. he is not culpable unless he gives a decision con¬ cerning what should be done. If a disciple gave a decision concerning what should be done he is not culpable, thus the greater stringency2 that applies to him on the one hand is seen to serve as leniency on the other.
3. Greater stringency applies to [the observance of] the words of the Scribes than to [the observance of] the words of the [written] Law.3 If a man said, ‘There is no obligation to wjear phylacteries’4 so that he trans¬ gresses the words of the Law, he is not culpable; [but if he said], ‘There should be in them five partitions’, so that he adds to the words of the Scribes, he is culpable.
4. He was not condemned to death either by the court that was in his own city or by the court that was in Jabneh,5 but he was brought up to the Great Court that was in Jerusalem. He was kept in guard until one of the [three] Feasts0 and he was put to death on one of the [three] Feasts, for it is written, And all the people shall hear and fear, and do no more presumptuously J So R. Akiba. But R. Judah says: They should not delay his judgement but put him to death at once, and write out and send messengers to every place, [saying], ‘Such-a-one the son of such-a-one has been condemned to death by the court’.
5. ‘The false prophet’8 — he that prophesies what he has not heard and what has not been told him, his death9 is at the hands of men; but he that suppresses his prophecy10 or disregards the words of another prophet11 or the prophet that transgresses his own words,12 his death is at the hands of Heaven, for it is written, / vnll require it of him.11 6. ‘He that prophesies in the name of a strange god’14 and says, ‘Thus saith the god’, [is culpable] even if he conformed with the Halakahls so as to declare unclean what is unclean and to declare clean what is clean. ‘He that has connexion with another man’s wife’16 — so soon as she has entered into the control of the husband in wedlock even if she has not suffered consummation, he that has connexion with her shall be put to death by strangling. ‘The false witnesses against the daughter of a priest and her paramour’17 — all false witnesses suffer first that same death-penalty [tc which the accused had been made liable] save the false witnesses against the daughter of a priest18 and her paramour.
; Deut. 17”. 2 In that he was not empowered to give legal decisions.
i i.e. it is a more serious offence in a judge who gives false direction in what concerns the rulings of the Scribes (cf. Hor. Is). This paragraph is omitted in the first printed editior of the Mishnah (Naples 1492).
4 Passover, Pentecost, or Tabernacles. 7 Deut. 17”. ® Deut. 18s*.
0 Some texts omit this clause. 10 Jonah i3. 1 1 1 Kings 20ss.
7 The law of the false witness (treated in detail in the following tractate ‘Makkoth’) is based on Deut. 19s*"1*.
3 4 See above, 91. She is to be put to death by burning, and he by strangling. If the witnesses against them are found false it is in doubt which of these two penalties can be applied According to the Tosefta their death is by burmng. But cf. above, 9*.
4OI MAKKOTH' (‘STRIPES’) 1. 1. How are witnesses dealt with under the law against false witness?2 [If they had said of a priest,] ‘We testify that such-a-one3 is the son of a divorced woman, or the son of a woman that performed halitzah \4 we cannot say, Let him be made in his stead ‘the son of a divorced woman’ or ‘the son of a woman that performed halitzah ’; but he must suffer the Forty Stripes.5 [If false witnesses have said,] ‘We testify that such-a-one is liable to exile’,6 we cannot say, Let him be exiled in his stead; but he must suffer the Forty Stripes. [If false witnesses have said,] ‘We testify that such-a-one divorced his wife and did not pay her her Ketubah'1 (yet may it not befall,8 to-day or to-morrow, that he will pay her her Ketubah?), they estimate how much a man would be willing to pay [now] for her Ketubah on the chance that she might be widowed or divorced, whereas, if she died, her husband would inherit it from her. [If false witnesses have said,]* We testify that such-a-one owes his fellow 1,000 zuz with a condition that he shall pay him within thirty days’, and the other said, ‘Within ten years’, they estimate how much a man would be willing to pay to have in his hands 1,000 zuz which, instead of being repayable within thirty days, shall be repayable within ten years.