Makkot 5a — the Talmud in English

For the proclamation!

To teach us that one must make a proclamation after they are punished, that their punishment comes because they plotted to make the defendant liable, and through this those who hear will be deterred from doing as they did.

And

if it were

Rabbi Meir—

from “

they will hear and fear”

is derived

the law of the proclamation. And according to him, the continuation of the verse, “and they shall not continue to do,” is superfluous, and therefore it is expounded as a warning to conspiring witnesses.

Mishna:

They divide into thirds,

they divide the punishment for conspiracy equally among the witnesses,

in

testimony of

money,

whose punishment is monetary.

But they do not divide into thirds,

they do not divide the punishment

in lashes.

When witnesses plotted to have the defendant flogged, and when they were found conspiring they became liable for lashes, the lashes are not divided among them; rather, each of the witnesses is flogged for the entire number of lashes that they plotted to inflict upon him.

How?—

If

they testified concerning him that he owed his fellow two hundred zuz, and they were found conspiring, they divide into thirds among themselves.

If there were two witnesses, each pays half; and if there were three, each pays a third, and so on.

But if they testified concerning him that he was liable for forty lashes, and they were found conspiring—

each and every one

of the witnesses

is flogged forty.

And the amoraim disputed in the Gemara concerning the reason for the distinction.

Gemara:

And we raised an objection concerning it:

From where are these matters derived,

that if the witnesses plotted to make him liable for lashes, each conspiring witness is flogged for all forty?

Abaye said: It is stated “

wicked”

concerning those liable for lashes, [in Deuteronomy 25,] “if the wicked man is a son of the beating.”

And it is stated

“

wicked”

concerning those liable for executions by the court, [in Numbers 35,] “who is wicked to die.”

And they learn by a gzera shava, “wicked”—“wicked.”

Just as there,

concerning those liable for executions,

there

is no partial death,

but all the conspiring witnesses are executed —

so too here,

when they plotted to make him liable for lashes,

there are no partial lashes,

but each witness is flogged for all the lashes, just as he would be executed with a complete execution if he had testified concerning his fellow with testimony that made him liable for execution.

Rava said

there is another source for the fact that they do not divide lashes into thirds:

We require

that “as he plotted” be fulfilled concerning the witnesses,

and it is not present

if each witness is flogged for only part of the lashes.

For if each of the witnesses is flogged for only part of the blows, the punishment “as he plotted” has not been fulfilled, since they plotted to have the defendant alone flogged with a complete forty lashes.

And we object: If so,

if, through dividing the punishment of lashes among the witnesses, “as he plotted” is not fulfilled, then when they testified to make him liable for

money, also

each of the witnesses should pay all that he plotted, so why do they divide it into thirds among themselves!? And we answer:

Money—

combines!

Since a monetary liability is payment to the defendant, each witness can give his portion, and from all of them together the defendant receives all that they plotted to cause him to lose; and this is considered one payment of “as he plotted.”

However, the punishment of

lashes—

does not combine!

If the number of lashes is divided among them, each witness individually is not punished with a complete set of lashes, and there is nothing that can combine them into the complete number of lashes that they plotted to administer!

If the number of lashes is divided among them, each witness individually does not receive a complete punishment of lashes, and there is nothing that combines their separate punishments into the full number of lashes that they plotted to administer!

And see the note for an explanation of the reasoning behind this distinction. Mishna:

Witnesses do not become conspiring witnesses

to nullify their testimony as a certainty and make them liable for “as he plotted”

—

until the witnesses who expose the conspiracy expose

the conspiring witnesses

themselves!

conspiring witnesses

That is, the conspiracy must concern them themselves, and not that they contradict them through testimony concerning the plaintiff and the defendant, or concerning the murderer and the murdered person.

And the Mishna explains: How is the conspiracy concerning the witnesses themselves, and how is the contradiction concerning their testimony?

If

the first witnesses, the conspirators,

said:

We testify concerning so-and-so that he killed a person,

at a particular time and in a particular place.

And

the second witnesses said to them:

How do you testify

concerning this person, that you saw him kill the person at that time in that place? But it is impossible that you saw him do this at that time,

for this murdered person, or this murderer,

was with us

all

that entire day

during which, according to your testimony, the event occurred,

in such-and-such a place!

And that place is distant from the place where, according to your words, you saw the event, and you could not have seen this event in the place you stated.

It necessarily follows that your testimony concerning him is founded on falsehood!

This is contradiction of the testimony, but not exposure of the witnesses themselves; therefore

—

these are not

the first witnesses, considered witnesses

who conspired,

because only their testimony was contradicted, and they themselves were not exposed as conspirators. This case is treated as two groups contradicting one another, and it is uncertain what the truth is.

But,

if

they said to them

the second witnesses to the first:

How do you testify

that you saw this at such-and-such a time and in such-and-such a place? You could not have seen this event,

for you were with us yourselves

all

that entire day in such-and-such a place

other,

which is distant from the place where the event occurred, according to your words, and you could not have seen it on that day in that place—

Behold, these the first witnesses become witnesses who conspired, and they are executed, the first ones, the conspirators,

elsewhere, which, according to your words, was far from the place where the act occurred, and you could not have seen it there on that day”—

on their word

of the second witnesses, those who expose the conspiracy. The Torah believed the witnesses who expose the conspiracy and not those exposed as conspirators, since those who expose the conspiracy testify concerning the bodies of the first witnesses, that they were in another place. And the first witnesses are not believed to contradict them.

And the Mishna continues and says: Even if, after the second witnesses, those who expose the conspiracy, came and exposed the first witnesses, there came two more witnesses, others, and testified in accordance with the testimony of the first witnesses. And the first two witnesses who exposed the conspiracy came again and exposed them as conspirators,

the first witnesses, the conspirators,

on the basis of the testimony

of the second witnesses, who exposed them as conspirators. The Torah gives credibility to the witnesses who expose them as conspirators rather than to the accused witnesses, since the former testify about the bodies of the first witnesses, saying that they were elsewhere. The first witnesses are not believed to contradict them.

also the witnesses of the second group; behold, these are believed to expose them as well.

And even if again

others came,

the witnesses of a third group, and testified like the first group, and also concerning them the first two witnesses who exposed the conspiracy returned

and exposed them as conspirators.

Even if

there were

one hundred

groups of witnesses who testified like the first group, and one group of those who expose conspiracies exposed all of them with the claim that all of them were with them at that time in another place—

they will all be executed

on the testimony of the two who expose the conspiracy.

Rabbi Judah says: This group of those who expose conspiracies—“ deviant” is this one! That is, from the language of a woman suspected of adultery, it has deviated from the proper path. For it necessarily follows that the witnesses who expose the conspiracy consulted with one another and decided to expose every witness who would come to testify concerning this event. And therefore

even

if there were

one hundred

groups of witnesses who testified in accordance with the testimony of the first group, and one group of witnesses who exposed them all as conspirators by claiming that all of them had been with the exposing witnesses at that time in another place—

they will all be executed

on the basis of the testimony of the two witnesses who exposed them as conspirators.

is not executed [

she is not executed]

on their word,

of those who expose the conspiracy,

but

only the witnesses of

the first group alone.

And the Gemara will explain why we do not nullify their testimony also concerning the first group.

Gemara:

The Gemara discusses

from where are these matters derived,

that conspiracy applies only when they testify concerning the witnesses themselves, that they were not at the place of the event?—

Rav Adda said: For the verse says: “

And behold, the witness is a false witness; he answered falsehood

concerning his brother.”

And from the precision of the wording, that it did not say, “And behold, the testimony is false,” but rather, “the witness is false,”

it is implied that they are not conspiring witnesses

until the body of the testimony is made false!

That is, that they testify concerning the falsehood in the bodies of the witnesses. The school of Rabbi Ishmael taught: We derive it from what is written, “ to answer against it a deviation.” And we interpret it: until the body of the testimony deviates! The witnesses who testify will be removed from there, from testifying, when the witnesses who expose the conspiracy come and testify concerning them that they did not see the event at all. Rava said: If two witnesses came and

that exposure as conspirators applies only when the witnesses testify about the witnesses themselves, saying that they were not at the place of the act?

Rav Adda said: The verse says:

“And behold, the witness is a false witness; he has answered falsely

against his brother.”

From the precise wording—since it does not say, “And behold, the testimony is false,” but rather, “the witness is false” —it follows that they are not considered conspiring witnesses

until the body of the testimony itself is shown to be false!

said:

In the east of the palace [

a large reception hall]

so-and-so killed a person.

And two witnesses came

other witnesses to expose them as conspirators,

and said: But

at that same time,

you were with us in the west of the palace—

we see,

we see

whether, as they are standing,

if they are standing

in the west of the palace,

it is possible

that they could see

that they could see

the east of the palace—

these are not conspiring witnesses.

We see,

we observe,

that if they are standing

as they stand

on the western side of the hall,

it is possible

that they can see

the people

on the eastern side of the hall—

these are not conspiring witnesses.

And if not —

these are zomemim.

And we ask:

Is this obvious?!

And we explain:

it might have entered your mind,

you might say that it is impossible to judge them as zomemim, because

we should be concerned for strong eyesight,

perhaps these witnesses see to a greater distance than everyone else, and perhaps they indeed saw from east to west across the capital city;

it teaches us

that we are not concerned for this, and we make them zomemim on this account.

And Rava said: Two came and said: In

a city

Sura,

in the morning,

at the time of morning,

on the first day of the week, so-and-so killed the person.

And two came

to make them zomemim,

and said:

on that same day

in the afternoon,

toward evening,

on the first day of the week —

you were with us in Nehardea,

which is distant from Sura.

We see,

we see,

if

if

from morning until afternoon

from morning until evening,

it is possible to go

it is possible to walk and arrive

from Sura to Nehardea —

they are not zomemim.

And if not,

if it is impossible to arrive within one day, from morning until evening, from Sura to Nehardea,

they are zomemim.

For it is proven that these witnesses were not at the place of the event about which they testified, at the time when it occurred.

And here too we ask:

Is this obvious?!

And we explain: in this statement Rava came to introduce the novelty that

it might have entered your mind to be concerned for “

a flying camel,”

perhaps the witnesses came from Sura to Nehardea on an exceedingly light and swift camel;

it teaches us

that we are not concerned for this, but rather make them zomemim through this testimony.

And Rava said: Two came and said: On the first day of the week, so-and-so killed the person.

And two came and said: You were with us on the first day of the week,

and you did not see such a thing on the first day of the week, although your very statement that so-and-so killed the person is correct.

Rather,

he did not kill him on the first day of the week, as you said, but rather on the following day,

on the second day of the week, he killed

him

—so-and-so—the person

in question.

And furthermore, even if they said

the second witnesses: Already on

the eve of Shabbat, so-and-so killed the person!

with the result that the killer was already liable to receive the death penalty for an act that preceded the testimony of the zomemim witnesses.

Nevertheless, these are the zomemim —

they are executed!

And they are not exempt on the grounds that they came to testify about a person who was already liable for death, with the result that they did not plot to execute him, since he was already a “dead man” at the time when they came to testify about him —

since

at the time when they are testifying

about the act [which according to their words was on the first day of the week] —

the person,

the killer, who in truth had killed earlier, was still

not liable for execution.

Since as long as they had not testified about him in the court concerning the fact that he had truly killed on the preceding Friday, he was still not liable for death.

And therefore, through their testimony, the zomemim witnesses, if it had been accepted and not contradicted, would have made a person who was still not liable for death liable to death; with the result that they plotted to execute a person who was not yet liable for a court-imposed death penalty.

And we challenge Rava:

what does it teach us

Rava through these words?

But we already

learned,

we learned this novelty in the Mishna: that it is possible for the defendant to be liable for death, and nevertheless the zomemim witnesses too are executed for their testimony against him.

For we learned [below, 6b]: If two were seeing him from this window and two from another window, if some of them do not see the others, these are two groups of witnesses.

Therefore, if one of them is found to be zomem —

he and they are executed.

And

if the

second group is exempt.

Thus, the zomemim are executed even though the substance of the act about which they testified is true, and the killer himself is executed on the testimony of the second group. The reason is that when they came to testify falsely against him that he was liable for death, he had still not become liable for death in court, although he had already performed the act of killing that made him liable for death. What novelty did Rava introduce?

And we answer:

the final clause,

because of the novelty at the end of Rava’s words, which will be explained below, where Rava said, “

which is not so with

the making of witnesses zomemim who testified about

the completion of judgment” —

it was necessary for him

to make this known.

And therefore he said this entire statement, even though it has no novelty in itself.

For after Rava said in the final clause of his words, as will be explained below, that in testimony concerning death or a fine, the liability of the defendant depends on the completion of judgment, and the liability of the zomemim witnesses depends on whether they testified before the completion of judgment or afterward, there is now a novelty even in Rava’s first clause. In monetary matters, in which the defendant becomes liable even before the completion of judgment, the zomemim witnesses do not become liable if they testified after the act that made him liable, even if their testimony was false testimony, since they did not see the act.

And this is the final clause of Rava’s words:

Two came

on Tuesday

and said: On the first

day of the week the judgment of so-and-so was completed

in the court of a certain place, for death, because he killed the person.

And two came

other witnesses and made them zomemim,

and said: On the first day of the week you were with us

in another place.

Rather,

it was indeed so that so-and-so killed the person, and already

on the eve of Shabbat

the previous week

the judgment of so-and-so was completed.

And furthermore, even

if the discrediting witnesses postponed the time when his judgment was completed and

said,

the discrediting witnesses:

On the second day of the week, the judgment of so-and-so was completed

for death —

these

the zomemim

are not executed!

Because

even according to the testimony of the discrediting witnesses, on Tuesday

it was so,

at the time when they are testifying,

at the time when the zomemim testified —

the person was a person liable for execution.

His sentence had already been decided by the court for death, and therefore one who kills him is exempt, because he has no blood. It follows that the zomemim did not come to introduce liability for death upon him, for he had already been judged for death by the court beforehand.

And Rava added and said:

And likewise with regard to payment of a fine!

For one who admits to a fine becomes exempt from payment. Therefore, with these too there is a distinction between testimony concerning the act itself and testimony that the judgment has already been completed.

For if

two came and said: On the first day of the week he stole

so-and-so an animal from his fellow

and slaughtered and sold

it, and he is thus liable for double payment for the theft, and for fourfold and fivefold payment [including the double payment] for the slaughter or the sale.

And two came and said: On the first day of the week you were with us.

Rather

the event was indeed so, but only

on the second day of the week he stole, slaughtered, and sold —

then the first ones are zomemim, and

they pay,

since he had not yet become liable in court for the fine of double payment and fourfold and fivefold payment, and the thief could become exempt from the fine by admitting it. Through this testimony they came to make him liable and to prevent him from the possibility of becoming exempt.

And furthermore, even if they said

that the act had already taken place

on the eve of Shabbat,

when he

stole, slaughtered, and sold,

nevertheless the first witnesses are considered zomemim witnesses and

they pay,

since

at the time when they are testifying —

he was still

a person not liable for payment.

For the court had still not made him liable for the fine, and he could admit to the fine and become exempt, and through their testimony he suffers loss.

But if

two came

on Tuesday

and said: On the first day of the week he stole, slaughtered, and sold,

and already

his judgment was completed,

and the court made him liable for payment of the fine.

And two came and said: On the first day of the week you were with us, rather

the act and the completion of judgment had already taken place

on the eve of Shabbat,

when he

stole, slaughtered, and sold, and his judgment was completed.

And furthermore, even if they said: On the first

day of the week he stole, slaughtered, and sold, and

only

on the second day of the week his judgment was completed,

nevertheless, the first witnesses

do not pay,

since

at the time when they are testifying

against him on Tuesday, already

he was a person liable for payment,

since the court had already made him liable for payment of the fine on Monday, and they caused him no loss.

And even to confess and become exempt, he can no longer do so, after the court made him liable.

We learned in the Mishna:

Rabbi Yehuda says: This is a stasis.