Makkot 2a (ב.) — the Talmud in English

Mishna:

How do conspiring witnesses become subject to the law of conspiring witnesses?

According to the Gemara’s conclusion, the meaning of the Mishna is as follows: Conspiring witnesses, who cannot be punished with the punishment that they sought to impose upon the defendant, and with whom it is impossible to fulfill the statement of the verse concerning a conspiring witness, “you shall do to him as he plotted to do to his brother”—how are they to be punished for their plot?

The Mishna gives two examples of conspiring witnesses who cannot be punished with the punishment that they plotted to impose, and therefore are flogged: a. If the conspiring witnesses said:

We testify concerning so-and-so,

a priest,

that he is the son of a divorced woman or the son of a woman released through halitza.

That is, they testify that this man’s mother was divorced from her first husband before them on a certain day and at a certain place, before she married his priestly father. Since his mother was forbidden to marry his priestly father because she was divorced, this son is a chalal and disqualified from the priesthood. Or they testified: This woman’s first husband died, and she fell before her husband’s brother for yibbum, and her yavam performed halitza before us on a certain day and at a certain place; afterward, the mother who had been released through halitza conceived from his priestly father.

Since she married a priest while she had been released through halitza, this son, who was born of that marriage, is rabbinically disqualified from the priesthood.

Afterward these witnesses were refuted as conspiring witnesses, because other witnesses came and testified that on the very day concerning which the first witnesses testified that they had seen the divorce or the halitza of his mother, they—the second witnesses—had been with them elsewhere, and the first witnesses could not have seen the act of divorce or halitza.

We do not say

that we shall punish the conspiring witness with the same punishment that he plotted to impose upon this man, and

this one shall become

the conspiring witness,

a son of a divorced woman or a son of a woman released through halitza in his place.

That is, we do not say that from now on the conspiring witness will be disqualified from the priesthood, as a son of a divorced woman or a son of a woman released through halitza is disqualified from the priesthood.

Rather, he is flogged,

the conspiring witness receiving

forty lashes.

The reason for and source of these lashes will be explained in the course of the Gemara’s discussion.

b. If the conspiring witnesses said:

We testify concerning so-and-so that he is liable to be exiled,

because we saw him kill a person unintentionally, on a certain day and at a certain place. And they were refuted as conspiring witnesses—

We do not say: This one shall be exiled,

the conspiring witness,

in his place!

The reason is explained in the Gemara, on the following page.

Rather, he is flogged,

the conspiring witness receiving

forty lashes.

Gemara:

We learned in the Mishna: How do witnesses become conspiring witnesses?

And we object:

Is it not “How do witnesses not become conspiring witnesses”

that should have been stated,

the tanna should have taught in the Mishna?

For the tanna is discussing how to proceed in a case where the conspiring witnesses do not receive the punishment that they plotted to impose upon the defendant.

Furthermore,

there is another difficulty: What is the tanna’s question in general, “How do they become conspiring witnesses?” Is the law of conspiring witnesses not a known matter, described below in the Mishna—

as it is taught below [5a]:

how witnesses are made into conspiring witnesses:

But, they said to them,

the witnesses who refuted the testimony, to the witnesses who conspired:

How are you testifying

to this testimony? You cannot testify concerning it,

for on that day

that you testify about, saying that you saw this man do what you testified he did at a particular place—

you were with us at a particular place,

elsewhere, far from that place, and you could not have seen this man at the place concerning which you testified—

these are conspiring witnesses!

Since the matter of conspiring witnesses is known, what is the Mishna’s question here, “How do witnesses become conspiring witnesses?”

And we answer:

The tanna

of our Mishna

is referring back to that passage.

The tanna of our Mishna is referring in his words to the Mishna at the end of tractate Sanhedrin, where we learned [on page 89a]:

All

the

conspiring

witnesses hasten to that death!

That is, conspiring witnesses cannot hope or expect to receive a lighter form of execution by a court than the execution that they plotted to impose upon the defendant. Rather, they hasten immediately to receive their punishment according to the severity of their plot—

Except for those who conspired against a priest’s daughter,

who testified that she committed adultery while married,

and

also testified concerning

the man who had intercourse with her,

who had intercourse with her while she was a married woman—

They are not punished with the severe punishment of death by burning, which they plotted to impose upon the woman [who was a priest’s daughter]. Rather, they are punished with the lighter punishment of death by strangulation, with which they sought to punish the man who had intercourse with her, as is the law for one who has intercourse with a married woman.

For in the case of those who conspired against a priest’s daughter, the Torah revealed

that

they

do not hasten to

be punished with

that same death,

the severe death by burning, which they plotted to impose upon the priest’s daughter,

but to another death,

death by strangulation, which is a lighter form of death, with which they sought to punish the man who had intercourse with her.

And since at the end of tractate Sanhedrin the tanna taught the law that there are witnesses to whom the law of “as he plotted” does not apply precisely, he therefore taught here, as a continuation of what was explained there,

that

there are other conspiring witnesses, in whose case

the law of

conspiring witnesses is not carried out at all,

because it is impossible to punish them with the punishment that they plotted to impose;

rather,

they are flogged with

forty lashes.

The tanna explains:

How

are these conspiring witnesses punished, when it is impossible to punish them with the punishment that they plotted to impose?

If they said:

We testify concerning so-and-so that he is the son of a divorced woman or the son of a woman released through halitza,

and they were refuted as conspiring witnesses—

We do not say,

concerning each and every witness:

This one shall become the son of a divorced woman or the son of a woman released through halitza in his place.

Rather,

he

is flogged with forty lashes!

The Gemara asks: What is the source of the Mishna’s law?

From where are these words,

that conspiring witnesses who sought to disqualify a priest by making him the son of a divorced woman or the son of a woman released through halitza do not themselves become disqualified like him, even if they are priests?

Rabbi Yehoshua ben Levi said:

Because

the verse says, “

you shall do to him as he plotted to do to his brother.”

And we expound: We punish him as he plotted only with a punishment that is a punishment for

him

alone,

and not for his offspring!

If the conspiring witness is a priest, and we punish him by disqualifying him as a chalal, as he plotted to do to his brother, his offspring too would be disqualified forever. But the Torah said, “you shall do to him”—and not to his offspring!

Therefore, it is impossible to carry out here the punishment of “as he plotted.”

And we object:

Let us disqualify him personally,

the conspiring witness himself,

but let us not disqualify his offspring!

For the disqualification of the conspiring witness is not an inherent disqualification; rather, it is a punitive disqualification for what he plotted to do to his brother. As a punishment, he could be disqualified with a limited disqualification that would not pass to subsequent generations, so that he alone would be disqualified. If so, even if the offspring of the conspiring witness were not disqualified, the punishment stated by the Torah—“you shall do to him as he plotted to do to his brother”—would still be carried out with regard to the conspiring witness himself. Why, then, should we not say that he becomes disqualified as a chalal!?

And we answer:

We require

that the punishment of

“as he plotted to do” be carried out against the conspiring witness

in its entirety,

but this is not possible!

We cannot punish him with “as he plotted” in its entirety, because there is a fundamental difference between disqualifying only the person himself, without the disqualification extending to his descendants as well, and disqualifying a person with a disqualification that applies for generations!

For the conspiring witness sought to disqualify the defendant with a severe disqualification that extends for generations. And if we disqualify the conspiring witness’s descendants but only disqualify him himself, this would not constitute punishment “as he plotted to do to his brother,” because his own disqualification is not equivalent to the disqualification that he plotted to impose upon his brother, which is a disqualification extending for generations, whereas the conspiring witness is not disqualified for all generations.

And since the punishment “as he plotted” is not fulfilled in his case in its entirety, he receives lashes, but does not receive a partial punishment of “as he plotted.”

Bar Padda says:

the reason that conspiring witnesses do not become disqualified in the same way that they plotted to disqualify others is that this law is derived through an

a fortiori inference:

What of one who profanes,

a koen who marries a divorcee and thereby profanes his descendants—he himself

is not rendered a halal.

All the more so, a conspiring witness

who comes to profane,

who wishes to profane a fit koen,

but did not profane him [since he was exposed as a conspiring witness]—

since he was exposed as a conspiring witness]—

is it not obvious that he should not be rendered a halal!

Ravina raises an objection

to Bar Padda’s derivation by means of a

kal va-chomer:

If so,

you have abolished the entire law of conspiring witnesses!

For in every case of conspiring witnesses, such a