2. [If they have said,] ‘We testify that such-a-one owes his fellow 200 zuz', and they are found false witnesses, they must be scourged and pay also the 200 zuz, since the class of transgression’ which renders a man liable to scourging10 is other than that which renders him liable to make recom¬ pense. “ So R. Meir. But the Sages say: He that makes recompense does not suffer the Forty Stripes.
3. [If they have said,] ‘We testify that such-a-one is liable to suffer the Forty Stripes’, and they are found false witnesses, they must suffer eighty stripes by virtue of the law Thou shalt not bear false tcitness against thy neighbour,12 and also by virtue of the law Then shall ye do unto him as he had thought to do.13 So R. Meir. But the Sages say: They suffer forty stripes only. A penalty in money may be divided among them, but not a penalty of scourging; thus if they have testified that a man owed his fellow 200 zuz and they are found false witnesses, the penalty is divided among them; but if they have testified that he was liable to the Forty Stripes, and they are found false witnesses, each of them suffers the Forty [Stripes].
4. Witnesses become subject to the law against false witness only if they bear false witness about themselves. Thus if they said, ‘We testify that such-a-one committed murder’, and others answered, ‘How can ye testify so, for lo, he that was killed, or he that killed him, was with us that same day in such a place’, they are not condemmed as false witnesses; but if others answered, ‘How can ye testify so, for lo, ye were with us that same day in : This tractate, originally combined with ‘Sanhedrin’ into a single tractate, deals with the manner of applying the law against false witnesses (Deut. 191*), with the Cities of Refuge, and with the infliction of the punishment of 'Forty stripes save one’.
* i.e. what is done in those cases when Deut. 191* (‘Then shall ye do unto him as he had thought to do to his brother’) is impossible of application?
* Is of ‘impaired priestly stock and ineligible to serve as a priest’; cf. Kidd. 4“*.
s Deut. 25'*., according to the Gemara, 2b, specifically applies to false witnesses.
6 To one of the Cities of Refuge. See below, 2,a.? App. I. 16.
* When he dies, or if he in truth divorces her. Therefore the false witnesses would have occasioned him no loss. 9 Lit. ‘name’, i.e. category of law.
402 FOURTH DIVISION: NEZIKIN such a place’, they are condemmed as false witnesses and are put to death at the mouth of the others.
5. If yet others came and proved false the evidence of these others, and yet others came and proved their evidence false, even if [there came] a hundred [pairs of witnesses to prove false the evidence of them that went before], they must all be put to death. R. Judah says: This would be a conspiracy: but the first pair alone are put to death.
6. False witnesses are put to death only after judgement has been given. For lo, the Sadducees used to say: Not until he [that was falsely accused] has been put to death, as it is written, Life for life.1 The Sages answered: Is it not also written, Then shall ye do unto hint as he had thought to do unto his brother}2 — thus his brother must be still alive. If so, why was it written, Life for life} Could it be that they were put to death so soon as their evidence was received [and found false]? — but Scripture says, Life for life; thus they are not put to death until judgement [of death] has been given [against him that was falsely accused].
7. At the mouth of two untnesses, or three witnesses, shall he that is to die be put to death:* if the evidence can be sustained by two witnesses why has Scripture said ‘three’ in particular? To compare three to two: as three witnesses4 may prove twro witnesses false, so two may prove three false. Whence [do we learn that two witnesses may prove even] a hundred [false]? Scripture says, ‘Witnesses’.5 R. Simeon says: Like as the two cannot be put to death unless they both are proved false witnesses, so three cannot be put to death unless they all three are proved false witnesses. And whence [do we learn that this applies even to] a hundred? Scripture says, ‘Wit¬ nesses’. R. Akiba says: The third witness is here mentioned only that the same stringency shall apply to him also, and that his condemnation shall be made like to that of the other two; if, then, Scripture has punished him that is joined to them that commit a transgression in like manner as them that themselves commit transgression, how much more will it recompense a like reward to him that is joined to them that fulfil a commandment as to them that themselves fulfil a commandment!
8. As the evidence of two witnesses is void if one of them is found to be a kinsman or ineligible,6 so the evidence of three is void if one of them is found to be a kinsman or ineligible. Whence [do we learn that this applies even to one out of] a hundred? Scripture says, ‘Witnesses’. R. Jose said: This only applies in capital cases;7 but in non-capital cases the evidence can be sustained by the remaining witnesses [that are not ineligible]. Rabbi says: It applies alike in non-capital cases and capital cases. When [does it apply in capital cases]? When they* joined in warning9 [the trans¬ gressor]; but if they had not joined in the warning — what should two brothers10 do that saw one that committed murder?11 9. If two men saw him from one window and two saw him from another s Even though they are a hundred the force of their testimony is only as that of two. By the form of expression ‘two witnesses, or three witnesses’ Scripture indicates an infinite numerical series; the essential and constant element is ‘witnesses’ (i.e. not less than two).
6 See Sanh. t4,4. 7 When the accused must be granted every assistance.
8 The ineligible or near of kin.
* The witness must have warned the transgressor; otherwise he is not a valid witness (see Sanh. 51).
10 Who, together with an unrelated third witness, give evidence.
11 Only if one of the brothers had not warned him can the other brother and the stranger be accounted valid witnesses.
window, and one in the middle warned him, if some among them can see the others, they are accounted a single body of testimony;1 otherwise they count as two bodies of testimony. If, therefore, [only] one pair of them were found false witnesses, both the accused2 and they must be put to death, while the second pair are not culpable. R. Jose says: None may ever be put to death unless he has been warned at the mouth of both his witnesses, for it is written, At the mouth of two witnesses.3 Another saying is: At the mouth of two witnesses — that the Sanhedrin should not hear [the evidence only] from the mouth of an interpreter.
10. If a man escaped after judgement had been given against him, and he came [again] before the same court, they may not reverse his con¬ demnation. Where two can rise up and say, ‘We testify that judgement [of death] against such-a-one was given in such a court, and such-a-one and such-a-one were his witnesses’, he must be put to death. The Sanhedrin may conduct its office either within the Land [of Israel] or outside the Land [of Israel]. A Sanhedrin that puts one man to death in a week of years4 is called ‘destructive’. R. Eliezer b. Azariah says: Or one in even seventy years. R. Tarfon and R. Akiba say: Had we been in the Sanhedrin none would ever have been put to death. Rabban Simeon b. Gamaliel says: They would even have multiplied the shedders of blood in Israel.
2. 1. These must escape into exile:5 If a man killed a soul unwittingly — if he was rolling [the roof] with a roller6 and it fell on a man and killed him, or if he was letting down a jar [from the roof] and it fell on a man and killed him, or if he was coming down a ladder and he fell on a man and killed him — he must escape into exile; but if he was pulling up a roller and it fell on a man and killed him, or if he was drawing up a jar and the rope broke and it fell on a man and killed him, or if he was going up a ladder and fell down on a man and killed him, he need not escape into exile. This is the general rule: he [that causes death] in the course of his coming down must escape into exile, but if not in the course of his coming down, he need not escape into exile. If the iron [of an axe] slipped from its haft and killed a man, Rabbi says that he need not escape into exile, but the Sages say that he must do so. If a piece of wood that was being chopped [flew up and killed a man], Rabbi says: He must escape into exile. But the Sages say: He need not escape into exile.
2. If a man threw a stone into the public domain and killed [another], he must escape into exile. R. Eliezer b. Jacob says: If after the stone had left his hand the other put out his head and received the stone, he is not culpable. If he threw the stone into his own courtyard and killed another, if he that was injured had the right to enter thither, the other must escape into exile; but if he had not the right, the other need not escape into exile; for it is written, As when a man goeth into the forest xvith his neighbour 7 — since the forest is a place into which the injurer and the injured have the right to enter, this excludes [from the law of unwitting murder] the courtyard of a householder into which the injured had not the right to enter. Abba Saul says: As the chopping of wood is an act of free choice [the law of * And no one of them all can be condemned as a false witness unless all are condemned.
* Who is found guilty on the evidence of the pair not proved false witnesses.
6 To harden the mixture of straw and clay used for the flat roofing of the bouse.
FOURTH DIVISION: NEZIKIN unwitting murder applies] to every act of free choice; this excludes the father that smites his son, or the teacher that chastises his pupil, or the agent of the court.1 3. The father must escape into exile because of his son,2 and the son because of his father. All3 must go into exile because of an Israelite, and an Israelite because of all others, excepting a resident alien.4 A resident alien need not go into exile save only because of [another] resident alien. He that is blind need not go into exile. So R. Judah. R. Meir says: He must go into exile. An enemy5 may not go into exile. R. Jose b. Judah says: An enemy must be put to death since he is, as it were, ‘an attested danger’.6 R. Simeon says: There is an enemy that may escape into exile and an enemy that may not escape into exile. This is the general rule: if it can be said.
He killed wittingly’, he may not escape into exile; but if, ‘He did not kill wittingly’, he may escape into exile.
4. Whither may they go into exile? To the cities of refuge: to the three that are beyond Jordan or to the three that are in the land of Canaan, as it is written, Ye shall give three cities beyond Jordan and three cities shall ye give in the land of Canaan...7 The three cities beyond Jordan granted no right of asylum until the three were chosen in the land of Israel, for it is written, They shall be for you six cities of refuge;8 they must all six of them together grant right of asylum.
5. And roads were made ready from one to the other, as it is written, Thou shall prepare thee the way and divide the borders of thy land.. And they used to appoint for him two disciples of the Sages,10 that if the avenger of blood would slay him by the way they may speak unto him." R. Meir says: Even he himself12 may speak unto him," for it is written, This is the word of the mans layer.1* 6. R. Jose b. Judah says: Beforetime both he that killed unwittingly and he that killed wantonly fled forthwith to the cities of refuge, and the court used to send and fetch them from thence. He that was condemned to death by the court was beheaded,14 and he that was not condemned to death was set free; he that was condemned to exile was sent back to his place, as it is written, And the congregation shall restore him to his city of refuge...'5 [A High Priest that dies] no matter whether he was anointed with the oil of unction or whether he was dedicated by the many garments or whether he had passed from his high-priesthood,'6 suffers the manslayer to return.17 R. Judah says: Also he that was anointed for battle18 [when he dies] suffers the manslayer to return. Therefore the mothers of the [High] Priests provided them [that were in exile] with food and raiment that they should not pray for their sons to die. If judgement had been passed against a man [that he must go into exile] and then the High Priest died, he need not go into exile; if judgement against a man [that he must go into exile] had not yet been passed and the High Priest died and another was appointed in his stead, and judgement was afterward passed against him. he may return only] at the death of the second [High Priest].
•' Who scourges another at the bidding of the court. See Makk. 3“.
2 Whom he has accidentally killed. 1 Even a bondman or a Samaritan.
* Num. 351*. » Deut. 19’. to Cf. Sot. 1*.
" To the avenger of blood (Deut. 19*) to persuade him that the manslayer was not worthy of death. 11 The manslayer. ‘t Deut. 194. Cf. Shebi. to".
14 See Sanh. 91. ” Num. 35'*. 16 On these three see Meg. 1*.
7. If judgement was passed against him when there was no High Priest, or if any one had slain the High Priest, or if the High Priest had slain any one, he may never come forth from thence. He may not come forth to bear testimony that is a religious duty1 or testimony in a non-capital case or testimony in a capital case; or even if the Israelites had need of him;z and even if he was a captain of the host like to Joab the son Zeruiah he may never come forth from thence, for it is written, Whither he was fled2 — there shall be his dwelling-place, there shall be his death, there shall be his burial. As the city grants asylum so does [all the space within] its Sabbath limit4 grant asylum. If the manslayer went beyond the Sabbath limit and the avenger of blood found him, R. Jose the Galilean says: It is the duty of the aven¬ ger of blood and the right of other men [to kill him]. R. Akiba says: The avenger of blood has the right, and the other men are not guilty if they kill him. If a tree stood within the Sabbath limit and its boughs stretched beyond the Sabbath limit, or if it stood beyond the Sabbath limit and its boughs stretched inside the Sabbath limit, everything is decided according to the position of the branches.5 If a man slew another within the city itself, he must escape into exile from one quarter [of the city] to another; but a levite0 must escape into exile from that city to another.
8. In like manner7 if a manslayer escaped into exile to a city of refuge, and the men of the city were minded to do him honour, he must say to them, ‘I am a manslayer’. If they answered, ‘None the less [we would do thee honour]’, he may accept [the honour] from them, for it is written, This is the word of the manslayer} They must pay the levites their hire. So R. Judah. R. Meir says: They need not pay them their hire. He may return to the office which he held before. So R. Meir. R. Judah says: He may not return to the office which he held before.
3. 1. These are they’ that are to be scourged: he that has connexion with his sister, his father’s sister, his mother’s sister, his wife’s sister, his brother’s wife, his father’s brother’s wife, or a menstruant;10 a High Priest that married a widow,11 a common priest that married a woman that was divorced or that had performed halitzah, an Israelite that married a bastard or a Nethinah, or the daughter of an Israelite that married a bastard or a Nothin. If a woman was a widow and also divorced, [and a High Priest married her,] he is thereby culpable on two counts. If a woman was divorced and had also performed halitzah, [and a common priest married her,] he is culpable only on one count.12 2. [These also are to be scourged:] an unclean person that ate Hallowed Things,13 or that entered the Temple while he was unclean,14 or that ate the fat or the blood, 1S the Remnant,16 or the Refuse17 [of the offerings], or [an offering] that was become unclean;18 or that slaughtered [an offering] or offered it outside the Temple;19 or that ate at Passover what was leavened,20 1 To give evidence of the appearance of the new moon; cf. R.Sh. i*®.
* Two thousand cubit* beyond the city’s confines. s Maas. 31*.
4 Whose home was in any city of refuge (Num. 35*).
i Some teats omit the meaningless 'in like manner’, which is repeated here from the duplicate paragraph in Sbebi. 10*. 8 Deut. 19*.
* The list is not exhaustive. 10 For all these see Lev. aon~*!.
11 For those that follow see Yeb. 2*.
11 Since the prohibition to marry the latter is not explicit in the Law but a rabbinical inference from Lev. 21’. *» Lev. 7*®. *♦ Cf. Num. 5*. *» Lev. 3". 16 Ex. 29**.
FOURTH DIVISION: NEZIKIN or that ate or did any act of work on the Day of Atonement;1 or that pre¬ pared [the like of] the Anointing Oil2 or the incense;3 or that anointed himself4 with the oil of unction; or that ate carrion or flesh that was unfit or forbidden beasts or creeping things; or that ate untithed produce or First Tithe from which Heave-offering had not been taken; or Second Tithe or dedicated produce that had not been redeemed.5 How much un¬ tithed produce must a man eat to become culpable? R. Simeon says: Any quantity soever. But the Sages say: An olive’s bulk. R. Simeon replied: Do ye not agree with me that a man is culpable if he eats an ant,6 however small? They said to him: Because it is in the form in which it was created. He answered: Also a grain of wheat is in the form in which it was created.
3. If a man ate the First-fruits before he had recited [the Avowal] over them,7 or ate the Most Holy Things8 outside the Curtains,’ or the Lesser Holy Things10 or the Second Tithe outside the Wall," or broke the bone12 of a clean Passover-offering, he must suffer the Forty Stripes. But if he left aught over from a clean [Passover-offering] or broke the bone of an unclean [Passover-offering] he does not suffer the Forty Stripes.
4. If a man took the dam and her young,13 R. Judah says: He incurs the [Forty] Stripes, and he need not [then] let the dam go. But the Sages say: He must let the dam go and he does not suffer the stripes. This is the general rule: [by transgression of] any negative command whereunto is joined a further command to rise up and do,14 a man does not become liable [to the Forty Stripes].
5. If a man made a baldness on his head,15 or rounded the corners of his head, or marred the corners of his beard,’6 or made any cuttings for the dead,17 he is liable [to the Forty Stripes]. If he made one cutting for five that were dead, or five cuttings for one that was dead, he is liable on each count. For [cutting off the hair of] the head [he is liable on] two counts, once for either side; and for [cutting off the hair of] the beard [he is liable on] two counts for either side, and once for below. R. Eliezer says: If he took it off all at once, he is liable only on one count. A man is not culpable unless he takes it off with a razor. R. Eliezer says: Even if he pulled it out with pincers or [scraped it off] with an adze, he is culpable.
6. If a man w'rote [on his skin] pricked-in writing [he is culpable]. If he wrote but did not prick it in, or pricked it in but did not write it, he is not culpable, but only if he writes it and pricks it in with ink or eye-paint or aught that leaves a lasting mark. R. Simeon b. Judah says in the name of R. Simeon: He is not culpable unless he writes there the name [of a god], for it is written, Nor print any marks upon you: 1 am the Lord.1* 7. If” a Nazirite20 drank wine throughout the day he is liable only on one count. If they said to him [repeatedly], ‘Do not drink! Do not drink!’ and he nevertheless drank, he is liable on each count.
8. If21 he contracted uncleanness because of the dead throughout the day, he is liable only on one count. If they said to him [repeatedly], ‘Do * Referring to the Tabernacle, Ex. 27*. The sense is ‘outside the Temple Court’.
There is the negative command not to take the dam, and the positive command to let the dam go. Deut. 14’. 16 Lev. 19”. 17 Lev. 19“.
18 Lev. 19*’; the stress is on the ‘I’. 19 See Naz. 6*. 20 Num. 6lB. 21 Naz. 6* not contract uncleanness! Do not contract uncleanness!’ and he neverthe¬ less contracted uncleanness, he is liable on each count. If he cut off his hair throughout the day he is liable only on one count. If they said to him [repeatedly], ‘Do not cut it off! Do not cut it off!’ and he nevertheless cut it off, he is liable on each count. If a man put on a garment of Diverse Kinds1 the whole day, he is liable only on one count. If they said to him [repeatedly], ‘Do not wear it! Do not wear it!’ and he took it off and put it on again, he is liable on each count.
9. A man can plough a single furrow and thereby become liable by virtue of eight prohibitions:2 if he ploughed with an ox and an ass3 which have been dedicated,4 among Diverse Kinds in the Vineyard5 in the Seventh Year6 on a Festival-day,7 he being a priest and a Nazirite and in a place of uncleanness.8 Hananiah b. Hakina says: He may, moreover, be wearing a garment of mixed stuff. They said to him: This does not fall within the same class9 of transgression. He answered: Nor does his being a Nazirite fall within the same class.
10. How many stripes do they inflict on a man? Forty save one, for it is written, By number forty;10 [that is to say,] a number near to forty. R. Judah says: He suffers the forty stripes in full. And where does he suffer the added one? Between the shoulders.11 11. When they estimate the number of stripes that he can bear, it must be a number divisible by three. If they had estimated that he could bear forty [save one], and after he had suffered these only in part they said, ‘He cannot bear forty [save one]’, he is exempt [from the rest]. If they had estimated that he could bear eighteen, and after he had suffered them they said, ‘He can bear forty [save one]’, he is exempt [from the rest]. If he had committed a transgression whereby he offended against two prohibitions, and they had made for him one estimate [for them both],12 he suffers them and is exempt [from more stripes]; but if not,13 he must suffer [the first estimate], be healed again, and then be scourged a second time.
12. How do they scourge him? They bind his two hands to a pillar on either side, and the minister of the synagogue lays hold on his garments — if they are tom they are torn, if they are utterly rent they are utterly rent14 — so that he bares his chest. A stone is set down behind him on which the minister of the synagogue stands with a strap of calf-hide in his hand, doubled and re-doubled, and two [other] straps15 that rise and fall [are fastened] thereto.
13. The handpiece of the strap is one handbreadth long and one hand- breadth wide; and its end must reach to his navel.16 He gives him one-third of the stripes in front17 and two-thirds behind;l8 and he may not strike him 1 Linen and woollen. See Deut. 22".
I And incur eight times forty stripes save one. 1 Deut. 22'°.
* The ox was to be an offering on the Altar and the ass given to the Temple to be sold for the benefit of the Temple treasury. These make three transgressions. In both cases the law of Sacrilege (Lev. 5“*) is also transgressed.
5 Ploughing over newly-sown wheat, barley, and grape-seed. This, according to Maimo- nides, is a transgression of Lev. 191*. * Lev. 25*. 7 p. 181, n. 11.
* Transgressing both Lev. 211 and Num. 6*.
* i.e. the single act of ploughing. Cf. Ker. 3*. For ‘mixed stuff' see Kll. 8*, 9’*.
«o Deut. 25. 11 According to the Gemara 22b this is the inference from Zech. 13*.
II At least 39; and a part (at least 3) of the second 39.
*7 If he had been condemned to but one scourging.
14 Cf. Sot. 1*. ts Of ass-hide.
16 When he is struck on the shoulder the strap is long enough for the end to reach the navel.
17 On the chest. 18 On that part of the shoulder that is bared.
FOURTH DIVISION: NEZIKIN when he is standing or when he is sitting, but only when he is bending low, for it is written, The judge shall cause him to lie down.1 And he that smites, smites with his one hand with all his might.
14. And the reader reads, If thou wilt not observe to do...the Lord will make thy stripes wonderful and the stripes of thy seed...2 and he returns again! to the beginning of the passage.3 If he dies under his hand, the scourger is not culpable. But if he gave him one stripe too many and he died, he! must escape into exile because of him. If he [that was scourged] befouled himself whether with excrement or urine, he is exempt [from the rest of the stripes]. R. Judah says: A man [is exempt only if he befouled himself] with excrement, and a woman [if she befouled herself] with urine.
15. All they that are liable to Extirpation,4 if they have been scourged are no longer liable to Extirpation, for it is written, And thy brother seem vile unto thees — when he is scourged then he is thy brother. So R. Hanina b. Gamaliel. Moreover R. Hanina b. Gamaliel said: If he that commits one transgression thereby forfeits his soul, how much more, if he performs one religious duty, shall his soul be restored to him! R. Simeon says: From the same place6 we may learn [the like], for it is written, Even the souls that da them shall be cutoff...; and it says, Which if a man do he shall live by them:7' thus to him that sits and commits no transgression is given a reward as to one that performs a religious duty. R. Simeon the son of Rabbi says: Lo. it says, Only be sure that thou eat not the blood.for the blood is the life...if a man keeps himself apart from blood (which man’s soul abhors) he receives a reward, how much more, if he keeps himself apart from robbery and incest (which a man’s soul longs after and covets), shall he gain merit, for himself and his generations and the generations of his generations to | the end of all generations!
16. R. Hananiah b. Akashya says: The Holy One, blessed is he, was minded to grant merit to Israel; therefore hath he multiplied for them the Law and commandments, as it is written, It pleased the Lord for his righteousness’ sake to magnify the Law and make it honourable SHEBUOTH (‘OATHS’) 1. 1. Oaths are of two kinds,10 which are, indeed, four;1' knowledge of uncleanness12 is of two kinds, which are, indeed, four;13 going out14 [with a burden] on the Sabbath is of two kinds, which are, indeed, four; the 2 Some texts insert here: And thou shall observe the words of this covenant...(Deut. 29*), and he finishes with But he being full of compassion forgave their iniquity...(Ps. 78”), and he returns again to the beginning of the passage.
4 Punishment at the hand of Heaven for transgressions about which it is written (e.g. Lev. 18”), ‘The souls that do them shall be cut off from among their people’. See p. 562, n. 16.