Makkot 2a — the Talmud in English

Mishna:

How do the witnesses become conspiring witnesses?

According to the conclusion of the Gemara, the explanation of the Mishna is as follows: Conspiring witnesses, whom it is impossible to punish with the punishment that they conspired to impose upon the defendant, and with whom it is impossible to fulfill the words of the verse concerning a conspiring witness, “And you shall do to him as he conspired to do to his brother”—how are they to be punished for their conspiracy?

And the Mishna brings two examples of conspiring witnesses whom it is impossible to punish with the punishment that they conspired to carry out, and therefore they flog them: a. If the conspiring witnesses said:

We testify concerning so-and-so,

a kohein,

that he is the son of a divorced woman and the son of a chalutza.

That is, they testify that this person’s mother was divorced in their presence on a certain day and in a certain place, before she married his father, the kohein. And since his mother was forbidden to marry his kohein father because she was divorced, this son is a chalal and is 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 chalitza with her in our presence on a certain day and in a certain place, and afterward the mother, the chalutza, conceived from his kohein father. And since she married a kohein while she was a chalutza, this son, who was born from this marriage, is disqualified from the priesthood by rabbinic law.

And afterward these witnesses were made conspiring witnesses, because other witnesses came and testified that on the day concerning which the first witnesses testify that they saw the divorce or the chalitza of his mother, they were with them in another place and could not see the act of the divorce or the chalitza.

We do not say

that we shall punish the conspiring witness with the same punishment that they conspired to inflict upon this person, and

this one shall become,

the conspiring witness,

the son of a divorced woman or the son of a chalutza in his place.

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

Rather, the conspiring witness is flogged

with flogging

of forty lashes.

The reason and source for these floggings 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 obligated to exile,

because we saw him unintentionally kill a person on a certain day in a certain place. And they were made 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 folio.

Rather, the conspiring witness is flogged

with flogging

of forty lashes.

Gemara:

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

And we raise a difficulty:

But “How do the witnesses not become conspiring witnesses”

it should have been required of him,

the tanna should have taught in the Mishna!

For the tanna is speaking about how to act in a case where the conspiring witnesses do not receive the punishment that they conspired to inflict upon the defendant.

And furthermore

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

for it teaches below [5a]:

How are the witnesses made conspiring witnesses:

But, they said to them,

the witnesses who make them conspiring witnesses, to the conspiring witnesses:

How are you testifying

this testimony? You cannot testify concerning it,

for on that day

concerning which you testify that you saw this person doing in a certain place what you testified concerning him—

you were with us in another certain place,

another place distant from that place, and you could not see this person in the place concerning which you testified—

these are conspiring witnesses!

And since the matter of conspiring witnesses is known, what is the question of the Mishna here, “How do the witnesses become conspiring witnesses”?

And we answer:

The tanna

of our Mishna

is referring there.

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

All

the witnesses

who are conspiring witnesses—

are brought forward to that death!

That is, conspiring witnesses should not hope or expect to receive a court-imposed death penalty lighter than the death penalty that they conspired to impose upon the defendant. Rather, they are brought forward [“rise early”] immediately, to receive their punishment according to the severity of their conspiracy—

except for those who conspired concerning the daughter of a kohein,

who testified concerning her that she committed adultery while married,

and

and they also testified concerning

the man who had intercourse with her,

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

that they are not punished with the severe punishment of burning, with which they conspired to make the woman liable [she being the daughter of a kohein], but are punished with the lighter punishment of strangulation, with which they sought to make the man who had intercourse with her liable, like the law of one who has intercourse with a married woman.

For concerning those who conspired against the daughter of a kohein, the Torah revealed

that they do not

—

go first to

go forward to being punished with

that same death,

the severe death of burning, with which they conspired to punish the daughter of a kohein,

but with another death,

the death of strangulation, which is a lighter death, with which they sought to make the man who had intercourse with her liable.

And

And since at the end of tractate Sanhedrin the tanna taught the law that there are witnesses concerning whom the law of “as he conspired” is not fulfilled exactly, the tanna therefore taught here, as a continuation of what was explained there, that

there are other conspiring witnesses who

there are other conspiring witnesses, concerning whom

the law of conspiring witnesses is not carried out at all,

since it is impossible to punish them with the punishment that they conspired to inflict,

but

they are flogged

with forty lashes.

And the tanna explains:

How

are these conspiring witnesses punished, whom it is impossible to punish with the punishment that they conspired to carry out?—

If they said:

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

and they were made 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 chalutza in his place.

Rather,

he

receives the forty lashes!

And the Gemara discusses: What is the source for the law of the Mishna?

From where are these words

that conspiring witnesses who sought to disqualify a kohein with the disqualification of the son of a divorced woman and a chalutza do not become disqualified like him, even if they are kohanim?

Rabbi Yehoshua ben Levi said:

Because of

the verse says: “

And you shall do to him as he conspired to do to his brother.”

And we derive that we punish him as he conspired only with such a punishment that is a punishment

to him

alone,

and not to his offspring!

And if the conspiring witness is a kohein, and we punish him by disqualifying him as a chalal, as he conspired to do to his brother, then his offspring too will be disqualified forever. Yet the Torah said, “And you shall do to him”—and not to his offspring!

And therefore it is impossible to carry out here the punishment of “as he conspired.”

And we object:

Then let them disqualify him personally,

only the conspiring witness himself,

and not disqualify his offspring!

For the disqualification of the conspiring witness is not an intrinsic disqualification, but a disqualification as a punishment for what he conspired to do to his brother. And as a punishment, it is possible to disqualify him with a limited disqualification that does not pass to succeeding generations, and only he himself will be disqualified. If so, even if the offspring of the conspiring witness is not disqualified, the punishment that the Torah stated, “And you shall do to him as he conspired to do to his brother,” is nevertheless fulfilled concerning the conspiring witness himself. Why, then, should we not say that he is disqualified according to the law of a chalal!?

And we answer:

We require

it is necessary to fulfill concerning the conspiring witness the punishment

“as he conspired to do”

in its entirety,

but it is not present!

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 passing also to his offspring, and disqualifying the person with a disqualification that applies for generations!

For the conspiring witness sought to disqualify the defendant with a severe disqualification, one that continues for generations. And if we disqualify the offspring of the conspiring witness not, but only him himself, this will not be the punishment of “as he plotted to do to his brother,” because his personal disqualification is not equal to the disqualification that he plotted to do to his brother, which is a disqualification for generations, whereas the conspiring witness is not disqualified for his generations.

And since the punishment of “as he plotted” is not fulfilled in him in its entirety, he is flogged, and he does not receive a partial punishment of “as he plotted.”

Bar Padda says:

The reason that the conspiring witnesses do not become chalalim, as they plotted to do, is that this law is learned by a

kal va-chomer:

And what of the one who profanes,

a kohen who marries a divorcee, and thereby profanes his offspring, he himself

does not become profaned.

All the more so a conspiring witness,

who comes to profane,

who wishes to profane a fit kohen,

but does not profane him [

since he was exposed as a conspiring witness]—

is it not logical that he should not become profaned!

Ravina raised an objection

to Bar Padda’s learning of the kal va-chomer:

If so,

that we exempt conspiring witnesses by this kal va-chomer—

You have annulled the law of conspiring witnesses!

For with regard to every case of conspiring witnesses, such a kal va-chomer can be learned to exempt them.