Talmud babilónico, Libro 8, tr. Rodkinson: Tratados Sanedrín

The brother of R. Jose b. Hanna questioned Rabba b. Nathan: Whence is this law deduced? (And the answer was:) from Ezek. xviii. 10-13; " . . . Upon the mountains he eateth . . . and his eyes he lifteth up to the idols of the house of Israel . . . and the wife of his neighbor he defileth . . . " To bloodshed the sword applies, to adultery with a married woman choking

p. 237

applies, and to idolatry stoning applies, and it ends with "his blood shall be upon him," which means stoning. Hence he is to be executed with the more rigorous one. R. Na'hman b. Itz'hak opposed: Perhaps all the crimes mentioned in this passage come under the category of stoning, namely, a "dissolute son," means a stubborn and rebellious son, to whom stoning applies; "he defileth the wife of his neighbor" means a betrothed damsel, to whom also the same applies; "to the idols he lifteth up," which is idolatry, to which stoning applies? If it were so, then what came Ezekiel to teach? And lest one say that he was only repeating what is in the Scripture, then he ought to have done as did Moses our master, who said [Deut, xvii. 18]: "He shall write the repetition of the law." 1

R. Abhah b. Hanina lectured about the passage [ibid. 6]: Upon the mountains he eateth not," which ends with [ibid. 9]: "He is righteous, he shall surely live." Is it possible that, because he has not committed such crimes, he should be called righteous? Therefore these verses must not be taken literally, but "upon the mountains he eateth not" means that he does not live upon the reward of the meritorious acts done by his parents; "his eyes he lifteth not up to the idols" means that he never walked overbearingly; "and the wife of his neighbor he defileth not," means that he never tried to compete in the special trade of his neighbor; "unto a woman on her separation he cometh not near" means that he never tried to derive any benefit from the treasure of charity--and to this it reads: "He is righteous, he shall surely live."

Rabban Gamaliel, when he came to this passage, used to weep, saying: It seems as if he who has done all of them is righteous, but not he who has done only one. Said R. Aqiba to him: According to your theory, the verse [Lev. xviii. 24]: "Do not defile yourself with all of these things," also means with all of them, but one of them is allowed? Hence it means to say with "any" of them. The same is to be said here: If one does one of the things mentioned above, he is righteous.

"A crime which deserves two kinds," etc. There is a Boraitha: How is R. Jose's decision in our Mishna to be illustrated?--e.g., if the crime which he committed with this woman was that she became first his mother-in-law and then married. Hence the prohibition of having intercourse with her applied, even before she

p. 238

married again. Then he must be tried under the crime "with a mother-in-law." But if she became his mother-in-law after her marriage, then he must be tried under the crime "with a married woman," as the prohibition against intercourse with her existed already before she became his mother-in-law.

Said R. Adda b. Ahabah to Rabha: In the first case, in which she married after she became his mother-in-law, why should he not also be tried for the crime with a married woman? Did not R. Abuhu say that R. Jose agrees in case a prohibition were added. (E.g., when she was his mother-in-law but unmarried, she was prohibited to him only, but allowed to the whole world, and when married she became prohibited to the whole world. Hence one prohibition was added. And in such a case R. Jose agrees that the second crime must also be taken into consideration.) And Rabha answered: Adda, my son, do you want us to execute him twice? (R. Jose considers the added prohibition to be only concerning sin-offerings, when incurred through error.)

MISHNA VII.: He who receives stripes, and relaxes into the same crime, and is punished again and does not repent, the court takes him to the kyphos, and feeds him with barley until his abdomen bursts.

GEMARA: Because he received stripes twice, should the court imprison him in the kyphos forever? Said Jeremiah in the name of Resh Lakish: The Mishna speaks of crimes to which korath applies, and he was forewarned of stripes, and was punished twice for the same crime. And as this man deserves death by Heaven, but his time has not yet come, and we see that he devotes his life to sin, the court imprisons him to hasten his death. Said R. Jacob to R. Jeremiah b. Tahlifa: Come and I will explain to you the real meaning of Resh Lakish: The Mishna means that he has committed the same crime thrice, for two of which he has received stripes. And as the court does not see any remedy for him, it puts him in the kyphos after the third time. If, however, he has committed different crimes to which korath applies, he is not taken to the kyphos, as he is not considered as devoting his life to this crime, but as one careless concerning prohibitions.

"He who receives stripes twice," etc. Twice, although he was not punished a third time! Shall we assume that our Mishna is not in accordance with R. Simeon b. Gamaliel, who says that until one has repeated the same crime thrice it is not considered

p. 239

a hazakah 1 (habit), Said Rabhina: It may be even in accordance with R. Simeon, as the crime was committed thrice, and he considers it a habit, although he was not beaten thrice.

An objection was raised from the following: He who has committed a crime twice to which the punishment of stripes applies receives the stripes twice; repeating same a third time, the court puts him in the kyphos. Abba Shaul, however, maintains that even to the third time he receives stripes, and only after he has committed the crime a fourth time does the court imprison him. Is it not to be assumed that the Tanaim of this Boraitha differ in the same point as R. Simeon b. Gamaliel and Rabbi differ--namely, whether it should be considered a hazakah after two times, which is the opinion of Rabbi, or after three times, according to R. Simeon? Nay; all agree with R. Simeon. And the point of their difference is that, according to the first Tana, the crimes which were committed thrice counted, and according to Abba Shaul, the stripes, and not the crimes, are to be counted.

Where is to be found an allusion in the Scripture to the kyphos in question? Said Resh Lakish [Ps. xxxiv. 22]: "The evil will slay the wicked." And the same said again: It reads [Eccl. ix. 12] "For man also knoweth not his time, like the fishes that are caught in an evil net," from which the same is to be inferred.

MISHNA VIII.: He who kills a person, not in the presence of witnesses, is taken to the kyphos and is fed on scant bread and water.

GEMARA: But whence do we know if it was not in the presence of witnesses? Said Rabh: If there was only one witness, or even if there were two who saw this from separate places. And Samuel said: If he committed the crime without forewarning. And R. Hisda in the name of Abimi said: Even when the witnesses contradicted themselves in unimportant matters--as, e.g., a Mishna stated above. Ben Sakkai examined them concerning the size of figs, etc., and they were not contradicted in the examination.

"And is fed with scant bread and water." And above it was said that he was fed with barley? Said R. Shesheth: In both cases it is meant that he was first fed with scant bread and water till his abdomen shrank, and afterwards with barley, from which it swelled till it burst.

MISHNA IX.: If one steals a kisvah, or one curses his

p. 240

neighbor, Invoking God as "a carver," or one has intercourse with a female heathen, zealous people (like Pinehas) have a right to strike him when caught in the act. If a priest performed the service in the Temple while he was unclean, his fellow-priests would not bring him to the court, but the youths would take him out of the sanctuary and split his head. If a common Israelite served in the Temple, according to R. Aqiba, he was choked by the court, and according to the sages he would come to his death by Heaven.

GEMARA: What is meant by "kisvah"? Said R. Jehudah: It means service vessels [cf. Num. iv. 7]. And where is there to be found an allusion to this in Scripture? [Ibid., ibid., 20]: "That they may not go in to see when the holy things are covered, and die."

"Who curses," etc. R. Joseph taught: May the carver strike his carving. And another explanation by Rabah b. Mari is: May the carver strike him himself, and his creator and his creation.

"One who has intercourse," etc. R. Kahana questioned Rabh: What is this punishment if there were no zealous men? Rabh forgot his traditional answer to this, and it happened that it was read before R. Kahan in a dream, etc. [Mal. ii. 11]: "Judah hath dealt treacherously, and an abomination hath been committed in Israel and in Jerusalem; for Judah hath profaned the sanctuary of the Lord which he loveth, and hath married the daughter of a strange god." And he came to Rabh and told him that so was it read to him, and therefrom Rabh recollected that this passage was an answer to his question, as it reads immediately after it: "The Lord will cut off, unto the man that does this, son and grandson, out of the tents of Jacob, and him that bringeth near an offering unto the Lord of hosts"--which means, if he was a scholar, that he should not have a son among the scholars or a grandson among the disciples; and if he was priest, that he should not have a son who should bring an offering, etc. Hyya b. Abuhu said: He who has had intercourse with the daughter of an idolater is considered as if he mingles himself with the idols. As it reads: "He hath married the daughter of a strange god." Has, then, an idol a daughter? Hence it means as is just mentioned above.

When R. Dimi, or Rabbin, came from Palestine, he said that the court of the Maccabees decreed: He who does so transgresses concerning the following four things: Neda (menstruation), Shif'ha (female-slave), Goiye (strangers in faith), and prostitution.

p. 241

Said R. Hisda: If one comes to the court with the question, "May one take revenge on the criminal mentioned above?" his question must not be answered. And so also said Rabba b. Hana in the name of R. Johanan, and not only this, but if it should happen that Zimri were killed by Phinehas after he separated himself from Cozbi, Phinehas would be put to death for this crime. Furthermore, if Zimri, seeing that Phinehas seeks his life, were to kill him in self-protection, he would not be punished, as Phinehas would be considered a seeker of life.

It reads [Num. xxv. 5]: "Moses said to the judges of Israel," etc. The tribe of Simeon went to Zimri ben Saul and said: They (the judges) are judging cases of capital punishment, and you keep silent! What did he do? He gathered twenty-four thousand of his tribe and went to Cozbi, pleading with her to listen to him. And to her answer, "I am a princess, the daughter of a king, and my father commanded me not to listen to any one but the greatest of Israel," he said: I myself am a prince of a tribe in Israel, and I am greater than Moses, as I am from the second tribe, while he is from the third. He took her by the locks of her hair, and brought her to Moses, saying: Son of Amram, is this damsel allowed to me, or prohibited? And should you say that she is prohibited, I would ask you, Who allowed to you the daughter of Jethro? Moses, however, had forgotten the traditional Halakha, and he and all who accompanied him wept. As it reads [ibid., ibid. 6]: "And these were weeping by the door of the tabernacle of the congregation."

And farther on it reads: "And Phinehas saw." What did he see? Said Rabh: He saw Zimri's act, from which he recollected the traditional Halakha. And he said to Moses: Granduncle, didst thou not teach me, on thy descending from Mount Sinai, that zealous men might take revenge on him who has had intercourse with the daughter of an idolater? To which Moses answered: Let him who reads the letter be the carrier--i.e., let him who gives the advice be its executor.

Samuel, however, said: Phinehas saw [Prov. xxi. 30]: "There is no wisdom, nor understanding, nor counsel against the Lord--i.e., in a case where there is a violation of the Holy Name the honor of the master must not be considered (and therefore Phinehas did it without the consent of his master Moses).

R. Itz'hak, in the name of R. Elazar said: He saw the angel who destroyed the people. It reads: "Arose and took a javelin in his hand." From this it may be inferred that one must not

p. 242

enter with arms into the house of learning. He took out the javelin from its sheath, sharpened it, and replaced it in the sheath so that it should not be visible; and went to the headquarters of Simeon's tribe, saying: Whence do we know that the tribe of Levi is greater than Simeon's? And the people who were there thought: Phinehas himself is coming to do the same as Zimri has done. Hence the scholars decided that this is allowed.

Said R. Johanan: Six miracles occurred to Phinehas when he came to smite Zimri. One--Zimri has not separated himself, etc (The continuation of the Haggadah will be translated farther on.)

"If a priest performed the service while he is defiled," etc. R. Ahbah b. Huna questioned R. Shesheth: Is a priest who does service, being defiled, deserving of death by Heaven, or not? And he answered: This we have learned in our Mishna: "A priest who does service in the Temple, being defiled, his fellow-priests would not bring him to court, but the youths would take him out and split his head." Now, if it should be supposed that he was guilty of death by Heaven, why did not they leave him to the heavenly punishment? Rejoined he: Do you mean to say that he was not guilty at all? Is there such a thing--that Heaven frees him and we should put him to death? Yea! Does not the court put one who is twice beaten with stripes in the kyphos and cause him to die? (What comparison is this?) Did not R. Jeremiah say that it speaks of crimes of a kind to which korath applies? Hence such an offender deserves death. But is the case not the same with him who steals a kisvah, and with the two other cases mentioned in our Mishna? To all of them it is taught that there are allusions in the Scripture implying that they deserve death, viz., concerning a kisvah [Num. iv. 20]: "That they may not go in to see when the holy things are covered, and die," concerning one cursing his neighbor, etc., it was explained by R. Joseph that it looks like blasphemy, and concerning an intercourse with a daughter of an adulterer, Rabh recollected his tradition, as said above.

An objection was raised from a Boraitha which states: And the following are liable to death by Heaven: An unclean priest who served in the Temple, etc. Hence we see that his punishment is death, R. Shesheth being objected to, and the objection remains.

The same Boraitha continues thus, The following deserve death by Heaven: One who eats grain in which the heave-offering

p. 243

is mixed, an unclean priest who eats a heave-offering while defiled, and a commoner who partakes of the heave-offering, a commoner who performs service in the Temple, a priest, while defiled, serving in the Temple, a priest who has had a legal bath after defilement and performs the service in the Temple before sunset, the same is if he performs the service without the prescribed dress, or he who performs service before the prescribed offering after defilement is brought, and also he who serves without the prescribed washing of his hands and feet, or he serves while drunk, or without having cut his hair at the prescribed time. However, one uncircumcised, a mourner while the corpse is not yet buried, and he who worships while sitting, do not come under the category of death by Heaven, but are only forewarned. A priest who has a blemish and he who derives benefit from the sanctuary intentionally--according to Rabbi he comes under the category of death by Heaven, and according to the sages he comes under the category of the forewarned.

Concerning heave-offering mentioned in the Boraitha, said Rabh: A commoner who partakes of heave-offering is to be punished with stripes. Said R. Kabana and R. Assi to him: Let the master say he deserves death by Heaven. And he answered: It reads [Lev. xxii. 9, 10]: "They die therefore . . . I am the Lord who sanctify them. And no stranger shall eat of a holy thing." Hence between "they will die" and "no stranger shall eat" intervenes "I am the Lord," etc., to teach that the punishment of death does not apply to a stranger. But does not the above Boraitha state that such comes under the category of punishment by Heaven? Do you want to contradict Rabh from a Boraitha? Rabh is a Tana, and has the right to differ. 1

"If a common Israelite served in the Temple," etc. There is a Boraitha: R. Ismael said: It reads [Num. xviii. 7] "And the stranger that cometh nigh shall be put to death"; and [ibid. xvii. 28] "Everyone that cometh near at all unto the tabernacle of the Lord shall die." As the verse just cited speaks of death by Heaven, the same is the case with the former.

R. Aqiba, however, said: Here the Scripture says: "And die therefore"; and [Deut. xiii. 6]: "And that prophet, or that dreamer of dreams, shall be put to death." And as there it means by stoning, the same is the case here. And R. Johanan

p. 244

b. Nuri said: As a false prophet is punished with choking, the same is the case here. What is the point of their difference? R. Aqiba holds that the expression "put to death" must be analogized with "put to death," and not "put to death" with "shall die." And R. Ismael holds that we should equalize a commoner with a commoner, and not a commoner with a prophet. According to R. Aqiba, however, a prophet who has misled is worse than a commoner.

And the point of difference between R. Aqiba and R. Johanan b. Nuri is the same wherein R. Simeon and the rabbis differ in the following Boraitha: To a prophet who has misled, stoning applies; according to R. Simeon, however, choking applies. But does not a Mishna above state (p. 239): R. Aqiba said: Choking applies. There are two Tanaim who differ concerning R. Aqiba's statement. Our Mishna mentioned R. Simeon, who said so, in accordance with R. Aqiba's theory; but the Boraitha is in accordance with the rabbis, who are of the opinion, with R. Aqiba. that choking applies.

Footnotes

223:1 It is impossible to give a literal translation of this Boraitha with even an abstract of the explanation as discussed by the Amoraim at length in the text. It is so complicated that the Amoraim themselves could not explain it without correcting the Boraitha or without giving to it an entirely strange interpretation. As was said by Rabha: "In any event, the analogy of expressions cannot be used without objections and difficulties." We therefore give a free rendering of the Boraitha, omitting the discussion.

228:1 Against our method, here are repeated a few lines from First Gate, pp. 55 and 56; but we could not do otherwise, because of the explanation in the text.

228:2 Leeser's translation does not correspond.

237:1 Leeser's translation, "a copy of the law," is entirely wrong.

239:1 See footnote, Vol. XIV., p. 217

243:1 All that is mentioned in the Boraitha cited is inferred from different passages in the Scripture by analogy of expression, followed by a discussion at length about them, which does not belong here and is therefore omitted.

CHAPTER X.

[figure]

p. 245

CHAPTER X.

RULES AND REGULATIONS CONCERNING THEM TO WHOM CHOKING APPLIES. CONCERNING A REBELLING JUDGE; WHAT SHALL BE HIS CRIME FOR WHICH HE IS TO BE EXECUTED; AT WHICH PLACE AND WITH WHICH KIND OF DEATH; AND CONCERNING A FALSE PROPHET.

MISHNA I.: To the following, choking applies: To him who strikes his father or mother, to him who steals a living soul of Israel, to a judge rebelling against the Great Sanhedrin, to a false prophet, to him who prophesies in the name of an idol, to the paramour of a married woman, and to the collusive witnesses of the married daughter of a priest who has sinned, and to her abuser.

GEMARA: Whence do we know that choking applies to the smiter of his father or mother? From [Ex. xxi. 15]: "Put to death"; and wherever the Scripture mentions death without specifying what kind, choking is meant. But perhaps the verse cited means "when he kills him or her"? How can it be supposed if one who kills a stranger is executed by the sword, that he who kills his father should be executed by choking, which is more lenient? However, this is correct according to him who holds that choking is lenient; but according to him who holds that the sword is lenient, what can be said? Therefore, from [ibid., ibid. 12]: "He that smiteth a man so that he die," and from [Num. xxxv. 21]: "Smitten with his hand that he die," we infer that when it is not mentioned "that he die," it means smitten only. And it was necessary for the Scripture to write both of the following passages, namely [Ex. xxi. 12]: "He that smiteth a man so that he die," and [Num. xxxv. 30]: "Whoever it be that killeth a person (soul)," for if the first only were written, one might say that one is liable only when he kills an adult, but not a minor; and if the second only were written, one might say that one is liable even if he killed a miscarried child or one who was born in the eighth month, and therefore both are necessary.

But from the above theory it is to be understood that if one smote his father he is guilty of a capital crime even if he did not

p. 246

wound him. Why, then, does the succeeding Mishna state that he is not guilty unless he wounds him? This is inferred from [Lev. xxiv. 21]: "And he that smiteth a beast shall make restitution for it, and he that smiteth a man shall be put to death." 1 As concerning a beast the striker is not liable unless he makes a wound, as in ibid. 18 it reads "nefesh" (soul, blood of it), the same is the case if he smote a person--he is not guilty unless he made a wound. R. Jeremiah opposed: According to this theory, if one has made lean an animal by using it to carry stones, should he not be responsible? Therefore we must say, as verse 30 is not necessary for this case, because of verse 18, apply it to human life. If so, why the analogy? In accordance with what was taught by the school of Hiskia (above, p. 233). But this is only correct for him who agrees with the school of Hiskia. But for him who does not agree with this theory, to what purpose is the analogy? To teach that, as there is no liability if one wounds an animal for the purpose of curing it, the same is the case with a human being. A similar question was propounded by the schoolmen: May one bleed his father to cure him? R. Mathna said: From "Thou shalt love thy neighbor as thyself" it may be inferred that he may. And R. Dimi b. Henna said: It is inferred from the analogy just mentioned. As there is no liability for wounding an animal to cure, the same is the case with a human being. Rabh did not allow his son to take out a string from his finger, lest he might wound him unintentionally, which is prohibited for one to do to his father; and Mar b. Rabhina did not allow his son to open for him a wound, for the same reason.

R. Shesheth was questioned: May a son be a messenger from the court to punish his father with stripes, or to put him under the ban? 2 Said Rabba b. R. Huna: And so also was it taught by the school of R. Ismael: Concerning all the crimes mentioned in the Torah, the court must not appoint the son of the criminal to strike, to curse his father, etc., except in the case of a seducer, about whom it reads [Deut. xiii. 9]: "Nor shall thy eye look with pity on him," etc.

MISHNA II.: A son is not guilty of a capital crime unless he wounds his father by striking him. Cursing is in one respect

p. 247

more rigorous than striking, as for the latter one is guilty when done to his living father only, and for the former he is guilty even if he did it after his father's death.

GEMARA: The rabbis taught: It reads [Lev. xx. 9]: "His father and mother has he cursed," which means even after his death. And this is repeated only for this purpose, lest one say that one is guilty for striking his father and for cursing him. Hence, as the former applies to a living father only, the same is the case with the latter. But this is correct only for R. Jonathan, as according to him the verse just cited is superfluous; but for R. Jashiah, who uses this verse for inferring father or mother (above p. 192), whence does he deduce the above statement? From [Ex. xxi. 17]: "And he that curseth his father," etc. But let the Mishna state that in another respect striking is more rigorous than cursing, as concerning the former one is guilty if he did so to his father even if he were of another faith, which is not the case with cursing (according to the opinion of some Tanaim). The Tana of our Mishna holds that cursing is compared to striking even in the latter case; i.e., one is also guilty if he curses his father who is of another faith.

Shall we assume that the Tanaim of our Mishna differ in the same way as the Tanaim of the following Boraithas, one of which states: If one's father was a Samaritan, he is forewarned against striking him, but not against cursing; and the other states: He is forewarned neither against striking nor against cursing? The schoolmen who learned these Boraithas thought: Both Boraithas agree that at the beginning the Samaritans were true proselytes (this refers to II. Kings, vii. 23-34), but at that time they were decadent. Hence the point of their difference is that, according to one Boraitha, striking is equal to cursing, and according to the other it is not? Nay! All agree that they are not equal, consequently the point of their difference is, whether the ancient Samaritans were true proselytes, or only embraced Judaism from fear of the lions. Hence they were not considered Israelites at all, but heathens.

MISHNA III.: If one steals a person, he is not guilty of a capital crime, unless he brings him upon his own premises. R. Jehudah, however, said: One is not guilty for only bringing him upon his premises, but after he used him for work. As it reads [Deut. xxiv. 7]: "And he treateth him as a slave."

If one steals his own son and sells him, R. Ismael, the son of R. Johanan b. Beroka, makes him guilty; the sages, however, free

p. 248

him. If one steals a person who is half free and half slave, i.e., a slave of two owners, one of whom has freed him, R Jehudah makes him guilty, and the sages free him.

GEMARA: And the first Tana of our Mishna does not require any work (notwithstanding that so it is written in the Scripture)? Said R. Ahbah b. Rabha: They differ if he worked with him to the value of less than a perutha. (According to the first Tana he is guilty, and according to R. Ismael he is not.)

R. Jeremiah questioned: How is the law if one steals a person while asleep and sells him in this condition, or if he stole a pregnant woman for the purpose of selling her embryo, is it considered treating as a slave, or, because he has not done it in the usual manner, is it not so considered? Usual manner! Let him say that there was not any kind of slavery at all? He speaks of when he used the sleeping one as a support and the pregnant woman as a protection against the wind (and as she is more stout because of the embryo, the protection is stronger). And to this was the question: "Is it considered slavery, or, because it was in an unusual manner, is it not? This question is now decided.

The rabbis taught: It reads [Deut. xxiv. 7]: "If a man be found stealing any one of his brethren of the children of Israel." From this we know only concerning a male, but whence do we know concerning the stealing of a female? It reads [Ex. xxi. 16]: "And he that stealeth a man--whatsoever. However, from both verses we know about a man who stole either a male or a female. But whence do we know that the same is the case when a woman steals a male or female? As to this, it reads in the verse above cited: "Then shall that thief die," meaning what person soever.

There is another Boraitha: The verse just cited means that there is no difference whether he stole a male or a female, a proselyte, or a bondsman who was freed, or a minor. However, if he stole him and did not sell him, or even if he sold him, but he is still on his own premises, he is not condemned to capital punishment. If he sold him to the father or brother of the stolen one, or to some one else of his relatives, capital punishment does apply. However, for stealing slaves it does not. This Boraitha was repeated by one of the disciples before R. Shesheth, and he rejoined: I teach: R. Simeon said: It reads: "From his brethren," which means that he is not guilty unless he took him out from the control of his brother. And you teach: He is guilty of a capital crime if he sold him to his father or brother.

p. 249

[paragraph continues] Go and teach that he is free. (Says the Gemara:) And what is the difficulty? Why not say that the Boraitha is in accordance with the rabbis? This cannot be supposed, as there is a rule that all the anonymous Mishnayoth are in accordance with R. Mair, anonymous Tosephtas in accordance with R. Nehemiah, anonymous Siphra in accordance with R. Jehudah, and anonymous Siphri in accordance with R. Simeon. And all of them are after R. Aqiba's instructions. And the Boraitha above cited is to be found in Siphri.

"If one stole his own son," etc. What is the reason of the rabbis, who free him? Said Abayi: It reads [Deut. xxiv. 7]: "If a man be found 'stealing,'" which means to exclude him who is often with him. Said R. Papa to Abayi: According to your theory [ibid. xxii. 22]: "If a man be found lying with a woman," etc., is also to be explained to exclude him who is often with her; e.g., in the house of so and so, which is crowded, and men and women are often together--should one not be liable for adultery? And he answered: I call your attention to [Ex. xxi. 16]: "And he will be found in his hand" (which is not the case with a father, whose son is usually in his hand). Said Rabha: According to this theory, teachers of schoolchildren and masters with their disciples are considered often together, and if it happened that one of the masters stole one of the children, he is free from capital punishment.

"Half a slave," etc. There is a Mishna (First Gate, p. 193): R. Jehudah says that there is no disgrace for slaves. And ibid. 195 (q.v.), the reason of R. Jehudah is given from [Deut. xxv. 11]. However, what would be his reason here? Thus: "From his brethren" means to exclude slaves; "children of Israel" means to exclude a half slave; "of the children of Israel" means again an exclusion, and means to exclude the same. And there is a rule that an exclusion after an exclusion comes to add. Hence a person who is half slave and half free is added to those for whom guilt is incurred. The rabbis do not hold his theory that "of his brethren" means to exclude slaves, as a slave is also considered a brother who is obliged to perform all the commandments which are obligatory on a woman. Hence, according to them, "children of Israel" means to exclude a slave, and "of the children of Israel" means to exclude half a slave and half a free man. But whence do we know about the forewarning of stealing a person of Israel? According to R. Jashiah: From [Ex. xx. 13]: "Thou shalt not steal." And according to R.

p. 250

[paragraph continues] Johanan: From [Lev. xxv. 42]: "They shall not be sold as bondmen are sold." And they do not differ, as one master counts the negative commandment of stealing, and the other the negative commandment of selling.

The rabbis taught: "Thou shalt not steal," in the third commandment, means human beings. But perhaps it means simply money? It may be said: Go and learn it from the thirteen methods by which the Torah is to be explained, one of which is that a word or (passage) is to be explained from its connection or from what follows, 1 and as the connection of this passage speaks of human beings, you must explain also that "stealing" applies to human beings. There is another Boraitha: It reads [Lev. xix. 11]: "Ye shalt not steal," meaning money. You say money, but perhaps it means human beings? Go and learn it from the thirteen methods, etc., one of which is that a word or (passage) is to be explained from what follows. And as the continuation of this passage is concerning money [ibid. 13] so also stealing is to be explained as meaning money.

It was taught: If there were two parties of witnesses, and one party testified that one stole a human being and the other testified that he sold him, and thereafter one of the parties, or both, were found collusive, they are not to be put to death, according to Hiskia. According to R. Johanan, however, they are. Hiskia's reason is that he holds in accordance with R. Aqiba, who used to say (Last Gate, p. 135): A case, but not half a case. And R. Johanan is in accordance with the rabbis, who said: Even for half a case. R. Papa, however, said, concerning the witnesses of selling: All agree that they are to be put to death. But the point of their difference is concerning the witnesses of the stealing. According to Hiskia they are not to be put to death, because stealing and selling are two separate crimes. R. Johanan, however, is of the opinion that the stealing is the beginning of the selling. The latter, however, agrees that the first witnesses concerning a stubborn and rebellious son are not to be put to death if found collusive, as they could say: Our intention was only that he should be punished with stripes, as it is said above that the son in question is not put to death unless he first received stripes.

Said Abayi: There are three cases concerning a stubborn and

p. 251

rebellious son. In two of them all agree, and in one of them they differ. Namely, concerning the first witnesses in this case, all agree that they are not to be put to death if collusive, as they could say: Our intention was only that he should receive stripes. And their claim must be taken into consideration. And also all agree concerning the second witnesses of same, that they are to be put to death, as the first witnesses are considered as concerning stripes only. Hence the second witnesses only would be the cause of death to the criminal son, if they were not collusive; and they have done the whole case even according to R. Aqiba, who requires the whole, and not half a case.

And the third case in which they differ is, if there were two parties of witnesses, one of which testifies: "In our presence he stole," and the other testified: "In our presence he consumed." And as the law regarding the criminal son dictates that he is not to be put to death unless he stole from his father and consumed on the premises of strangers, both things depend on each other. Hence according to R. Aqiba each of the parties has done only half a case. And if one or both were found collusive, they cannot be put to death for half a case; and according to the rabbis they can, as they make one guilty for half a case.

MISHNA IV.: A judge rebelling against the Great Sanhedrin (to whom, as stated in the first Mishna of this chapter, choking applies) is commanded in the Scripture as in Deut. xvii. 8-13. There were in Jerusalem (at the time of the Temple) three courts: one was situated at the gate of the Temple Mount (this was the east gate, inside of the surrounding wall, preceding the women's court); and another was situated after the women's court, but preceding the court of the common Israelites; and the third one was situated in the Temple treasury for congregational sacrifices. And in case a judge in the country had a dispute about the law with his colleagues, as to which the Scripture commands to bring their case before the court in Jerusalem, they came to the first court, situated at the above-mentioned gate. And the judge in question related his case before the court: I have lectured thus and thus, and my colleagues have lectured otherwise--thus and thus. I have taught in accordance with my lecture so and so, and my colleagues so and so. And if this court were able to decide it traditionally, they rendered their decision; and if not, they came before the other court, explaining the same again. If this court were able to decide it traditionally, they rendered their decision; and if not, all of them came to the Great Sanhedrin,

p. 252

which was in the Temple treasury, from which the law proceeds to all Israel, wherever found. As it reads [ibid., ibid. 10]: "From that place which the Lord will choose, and thou shalt observe to do according to all that may instruct thee." Then if the judge returns to his own city and continues his lectures as before, he is not culpable. If, however, he gives his decision for practice, he is subject to capital punishment. As it reads [ibid., ibid. 12]: "And the man that will act presumptuously," etc., which means that he is not culpable unless he decides for practice.

A disciple who is not a judge, who decides for practice against the decision of the Great Sanhedrin, is not culpable. Hence the rigorousness which lies upon him, not to give his decision in any law (until he shall be forty years of age), becomes lenient concerning the punishment.

GEMARA: The rabbis taught: It reads [ibid., ibid. 8]: "khi j'pola," literally, "if it will wonder." Hence the passage speaks of the wonder (prime) judge of the courts. "Mimcho"--from thee," means a counsellor. As it reads [Nahum, i. 11]: "There is gone forth (mimcho) out of thee he that devised evil against the Lord, the counsellor of infamous things." "Dabhor"--"a matter," means a Halakha; L'michphat means a decision of money matters. "Between blood and blood" means blood of menstruation and the blood of purification after birth (referring to Lev. xii. 4) or blood of infliction. "Between plea and plea" means criminal and civil cases and cases of stripes; "Between lepers and lepers"--bodily leprosy, leprosy of houses, of dress, etc.; "matters"--excommunications, appraisement of things belonging to the sanctuary; "controversy"--a thing which came from a controversy between a husband and wife (ref. to Num. v. 11-25); breaking the neck of the heifer (Deut. xxi.)--the purification of men who were afflicted with leprosy; "within thy gates"--about gathering grain of the poor, forgetters of sheaves and peah (corner tithe); "shalt thou arise"--from thy court. "Get thee up" infer from this that the Temple was the highest building in all Jerusalem, and the land of Israel was situated higher than all other countries. "Unto the place"--infer from this that the place is the cause of the situation of the high court.

The rabbis taught: A rebelling judge is not guilty unless he gave his decision in a matter to which, if done intentionally, korath applies; and if unintentionally, a sin-offering. So is the decree of R. Mair R. Jehudah said: As to a matter of which the source is to be found in the Scripture, and the interpretation is

p. 253

by the scribes. R. Simeon, however, maintains: Even as to one observation of the many observations of the scribes.